“Justice, and the arrival of that justice being delivered, is essential to the protection of the guideline of thumb of law. Justice implies – consistency, in technique and result — that is, treating like instances alike; a technique that’s unfastened from coercion or corruption; making sure that inequality among the events does now no longer affect the final results of the technique; adherence to the values of procedural fairness, with the aid of using permitting events the possibility to save you their case and to reply opposite allegations, and impartial impartial selection making; dignified, cautious and critical selection-making and an open and reviewable technique.”
– Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’
Nemo judex in causa sua is a legal principle which means, “no-one should be a judge in his own case.” This is a principle of natural justice that no person of interest can have a say in his own case or matter of importance to him. This rule is applied to any possible appearance of bias, even if there is not any bias but there seems to be biased prima facie.
For courts of law to maintain fairness, impartiality and govern the dispersion of justice in accordance with the principles of natural justice, the doctrine of “Nemo judex in causa sua” needs to be followed, the practical manifestation of which is recusal of judges from benches. Recusal of judges from benches can be simply defined as the elimination of oneself as a decision or coverage maker in a selected matter, mainly due to warfare of interest. Once it appears to the concerned judge that he would be unable to deliver justice in the case he is the judge of, he is expected to recuse himself from the case following judicial ethics. The right to recuse is given to the discretion of the judges. This trend of recusal of judges started from a common law case in 1852.
What we know as ‘bias’ today, is the most controversial ground for judicial disqualification, historically is has not been recognised for judges but was commonly accepted in relation with jurors. Consanguinity, affinity, friendship or enmity with a celebration, or due to his subordinate popularity in the direction of a celebration or due to the fact he became or were a celebration’s advocate as written by Grant Hammond in Judicial Recusal.
India currently lacks any statute laying down the procedures to the practice of judicial recusal which is required to maintain an impartial and independent judiciary. This article thus aims to study the process of recusal in India with the help of case laws and also make suggestions to create a model or codified procedure for recusal of judges from benches in corroboration with the legal doctrine of “nemo judex in causa sua”.
Legal Doctrine of “Nemo judex in causa sua”
Natural justice is a central principle of law and justice, it represents higher procedural principles one of which is the doctrine of “Nemo judex in causa sua”, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. Natural justice implies fairness, equity and equality. In India with progressing welfare policies, the role and jurisdiction of administrative agencies are increasing at a rapid pace. The concept of rule of law itself would lose steam if separated from this doctrine.
The Latin phrase “Nemo judex in causa sua” means “No-one should be a judge in his own case”. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: Justice should not solely be done, however, must be seen to be done.
The legal effect of non-conformance with the said doctrine is usually to stop the proceedings and render them invalid, in other words, the proceeding at hand is quashed or goes to the appellate court.
This doctrine borrows from and lends itself to other legal principles including Justice should not solely be done, however, must be seen to be done.
“Nemo judex in causa sua” is popularly known as the rule against bias. According to the principles of natural justice, the one in the position of authority should be impartial acting with fairness while lacking prejudice and bias. Any mental condition that would prevent a judge or juror from being fair and impartial is called bias. If there exists A particular influential power which sways the judgment; the inclination or propensity of the mind towards a particular object. It may be ground for disqualification of a said judge. (Grant Hammond in Judicial Recusal.)
It is also defined as a predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination; a prejudice.
If bias and partiality were to be defined as the total absence of any preconceptions in the mind of the Judge, then no one has ever had a fair trial, and no one ever will. We are born with the predispositions and the process of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition are prejudiced. (Justice Frank, Re JP Linahan)
Doctrine of Recusal
Borrowing from the basic precept of natural justice therein, “Nemo judex in causa sua” is central to the concept of judicial recusal. Courts must keep the promise of dispensing fair and impartial justice and must decide cases sans bias.
The practice of recusal i.e. when and how an individual Justice should be excluded from participating in a specific case, where he has some interest has been a regular topic of passionate debate since the founding in the United States of America and United Kingdom. (Jeffrey W Stempel, ‘Rehnquist, Recusal, and Reform’ (1987)). Recusal is “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest”. In Judicial Recusal: Principles, Process and Problems by Grant Hammond, “The doctrine of judicial recusal enables, and may require, a judge who has been appointed to hear and determine a case to stand down from that case and leave the disposition of it to another colleague or colleagues.
The judicial oath in England and Wales, widely echoed in the common law world, is to do justice ‘without fear or favour, affection or ill-will. Fear and favour are the enemies of independence, which is a state of being. Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal a serious business.”
The Practice of Recusal in India
India lacks any legislation laying down the criteria, procedure and checks that the court of law must follow to ensure impartiality. However, courts have always insisted that judges and other adjudicatory authorities must ensure that they have to ensure principles of impartiality.
The principles of Natural Justice have developed with the growth of civilization and the content thereof is often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community. (Caperton v. A. T. Massey Coal Co., 2019)
In Administrative Law, (2005) by I. P. Massey, in order to protect himself against the excesses of organized power man has always appealed to someone beyond his own creation. Such someone could only be God and His laws could only be divine law or natural law to which all temporal laws and actions must conform. This was the origin of the concept of natural justice. It implies fairness, reasonableness, equity and equality.
Though the Indian constitution does not use this expression, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution. Duty to act fairly and impartially is ingrained in articles 14 and 21 of the constitution. Indian courts have nourished these values with reference to administrative decision making and emphasized on the test of ‘real likelihood of bias.‘
What is relevant according to the Supreme Court is the reasonableness of the apprehension in that regard in the mind of the party. (Ranjit Thakur v. Union of India, 1987) Hence the proper approach in case of bias for the Court is not to look into his own mind and ask “am I biased?” but to look into the mind of the party before it. The reason was plain enough, writes Lord Denning, “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the judge was biased.” Lord Denning, The Discipline of Law, (1982).
However, when it comes to the application of discussed principles and precepts on the Indian Judiciary, there is a lack of procedure and statute and the law is not very clear. In the recent cases of recusal, the principle itself prevails but there is no set formula as to when and how this principle is to be applied.
In India mainly two methods of recusal are in practice, first being automatic recusal and the second – if no one objects, a judge may proceed with the matter.
Automatic Recusal can be defined as when the procedures in place already and automatically eliminate a judge from presiding over a case he shares a conflicted interest with. Of recent senior judges have advocated for a mechanism that supports automatic recusal in courts of law.
Justice Markandey Katju, automatically recused himself as he withdrew his name from the Novartis case claiming that it would not be improper and unethical for him to be a judge on the said case. His withdrawal from the case was apparently meant to preclude fears of bias in the MNC camp on account of an article he had written five years earlier against the liberal grant of pharma patents. (Manoj Mitra, Novartis case: How two SC judges had recused themselves from the case, TOI)
Justice Justice A. R. Dave and Justice Vikramjit had also decided to recuse themselves from the legal proceedings of a dispute between Airtel, Department of Telecom and Reliance Communications which was about the addition of new customers by Airtel in circles where it had failed to get 3G spectrum licenses. Such recusal was made without providing any reason for it to the public.
Justice S. B. Sinha, raising his concerns on the decline of judicial ethics advocated for an automatic recusal process in the judicial system. He intimated his shock to have seen two senior judges of the Supreme Court decide a case which they had probed in an administrative capacity when they were judges at the High Court of Punjab. He said, “[w]e also fail to see as to why two senior Judges who had headed the Committee should have been made part of the Bench that decided the case.”
The second method practised is ‘If no one objects, the judge may proceed’- This simply means if there is no objection from either sides or either party concerned in the case the judge will decide the case in the court of law. In recent years of the Indian judiciary, the courts of law have also witnessed the usage of this method of recusal or lack thereof.
In the Punjab Civil Service (2006) Case, two senior Judges of the Supreme Court, who had headed the Committee and decided the service matter in the capacity of the judge of the Punjab High Court, heard the case on the judicial side. The Punjab judges, with an appealing candour, asked lawyers appearing in the case if they had any objections. There were none. The judges heard the case. Justice S. H. Kapadia immaculately followed this practice. Disclosing the fact that he owns some shares in Vedanta, he frankly asked the lawyers appearing in the case whether he should recuse himself from hearing the case if the lawyers had any objections.
In Metropolitan Properties Co (FGC) Ltd. v. Lannon, while considering whether or not there was a true chance of bias, the court doesn’t investigate the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it should be, who sits during a judicial capacity. It does not look to check if there was a real likelihood that he would, or did, after all, favour one aspect at the expense of the different. The court appearance at the impression which might incline to other people. even though he was as impartial as might be, notwithstanding if correct persons would suppose that, in the circumstances, there was a true chance of bias on his part, then he shouldn’t sit.
In Regina v. Liverpool City Justices, “[a]ssuming, therefore, that the magistrates had applied the test advised by Mr Pearson: ‘Do I feel prejudiced?’ then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction, would follow.”
In Yunus Khan v. State of Uttar Pradesh and Ors., 2009, the legal maxim “nemo debet essejudex in propria causa” (no man shall be a judge in his own…trial. The decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”
In P Chidambaram v. Central Bureau of Investigation or Central Bureau of Investigation case, 2019, three judges recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation.
In Ayodhya case, 2019, Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhaya after being pointed out that the judge had appeared for former UP CM Kalyan Singh in a related contest.
In Ranjit Thakur v. Union of India, 1988, Justice MN Venkatachaliah affirmatively held that “in order to test for the existence of bias, the mind of the party plays a crucial role. The proper way would be for a judge to not question his objectivity, but to rather look at the mind of the party before him.”
The restatement of Values of Judicial Life adopted by the SC categorically states, “A Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised”.
In Ashok Kumar Yadav v. the State of Haryana, 1985, Supreme Court tried to explain the reasons behind recusal. It held that if there is a reasonable chance for the judge to be biased, the judge is supposed to recuse himself.
The Restatement of Values of Judicial Life adopted by the Supreme Court on May 7, 1997, categorically states, “[a] Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”
This is a clear pointer that if a judge has even a remote possibility of having a subconscious bias, he should recuse. For a long time, it has been a practice in the Supreme Court that in serious issues like inter-state water disputes, judges from the state concerned do not sit on the bench to decide them. Judges often recuse themselves voluntarily to avoid controversies or to honour the age-old principle, “Justice must not only be done but must appear to be done.”
Section 479 of the Code of Criminal Procedure, 1973, states that ‘no Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself’.
Critique and Suggestions
The Constitution of India vests in the Indian judiciary great power to impart justice and impact the daily lives of each citizen on a daily basis. For this very reason, a certain amount of immunity is given to judges. Fairness, impartiality and a preserved moral compass are elements essential to the nature of judge hood itself.
Once it appears to the judge that he cannot deliver justice in an impartial manner, ethically he is expected to recuse. The right to recuse is given to the discretion of the judges.
At what instance should a judge recuse themselves from hearing a case is not statutorily given as the prerogative of the judge but the question that arises is whether such choices of significance must be left to the prerogative of the individual judges?
The question that follows is in what circumstances does an act of recusal become almost fundamental to the judges legal and moral responsibility to the court?
Another issue is whether judges are accountable to the parties, lawyers and courts of justice to disclose the reasons for recusal? If so is it possible to subject the judiciary to restriction and regulations regarding recusal while not diluting the independence of the judiciary?
There is no specific legislation in India to direct or regulate a judge’s recusal. There exists a lack of concrete statutorily framework to address the issue, however, the nature of recusal in India itself is customary. This is based on a probable existing bias, where judges are expected to recuse. Thus, I would like to criticize the existing framework as it creates ambiguity and leaves to the people’s curiosity the nature of the relationship that the judges have with the case itself.
Recusal of judges, thus, must be regulated by laws in place that identify the basis and criteria of recusal, the degree of bias and publish the reasonable concern or merit behind the need of a particular recusal by a judge. Such action needs to be taken in a way it does not infringe upon the freedom and independence of the judiciary.
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