Context: A litigant cannot seek recusal of the judge during a hearing, the Supreme Court has said.

Background:

The order was based on a plea seeking the recusal of the CJI from his PIL highlighting the plight of inmates in Assam’s detention centres for illegal immigrants.

Refusing to recuse, Chief Justice Gogoi said “a litigant should not be permitted and allowed to question a judge on perceived bias especially after hearing has commenced and orders on different dates have been passed”. If a judge recuses on the word of the litigant, it may fall into a practice and would descend into forum-shopping.

Concerns associated with recusal of judges:

• Often, judges don’t record their reasons for recusal in writing, allowing, in the process, leaving plenty of scope for conjecture and surmise.
• An unwarranted recusal, much like a failure to recuse when faced with genuine conflicts of interest, damage the rule of law.
• To withdraw from a case merely because a party suggests that a judge does so impair judicial fairness.
• It allows parties to cherry-pick a bench of their choice.
• A mistaken case of recusal can prove just as destructive to rule of law as those cases where a judge refuses a recusal despite the existence of bias.

Are there any rules in this regard?

There are no definite rules on recusals by Judges.

Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015)held that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken,”

Need of the hour:

Transparency in procedure is one of the major factors constituting the integrity of the office of a judge in conducting his duties and the functioning of the court, and so adopting a principle of disclosing reasons for recusal will augur well with it.

This will also help curb the tendency of forum shopping when a mischievous litigant, wanting to avoid a judge because the judge is known to be very strong, could raise baseless submissions on the conflict of interest.

The basic principle of judicial conduct:

A judge should not have an interest in the litigation before him which could give rise to an apprehension of his deciding a matter in favour of one of the parties. Bias by interest falls into two broad classes. First, where the judge has a pecuniary interest in the subject matter of litigation and, second, wherefrom his association with or interest in one of the parties the judge may be perceived to have a bias in favour of that party.

Way ahead:

In taking the oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favor, affection or ill-will”.

Definite rules need to be framed in this regard.

Judges should express their decisions in writing.

Conclusion:

The nature of the judicial function involves the performance of difficult and at times unpleasant tasks, and to that end, judicial officers “must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.”