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Recusal Refusals
Judges recuse themselves from benches to retain people’s trust in the judiciary. Lately, there have been controversial recusals: in one case by a few Supreme Court judges, and in another where a recusal was refused. The Chief Justice of India too had refused to recuse himself in a third case. Through an examination of various tests of determining bias and examples of other countries, a critical examination of the propriety of these refusals to recuse has been made.
In recent months, the Indian Supreme Court saw two extreme examples of judicial recusals. In the case of Gautam Navlakha, a human rights activist who had approached the Court for the quashing of criminal proceedings against him, as many as five judges on their own recused themselves (Hindu 2019). But, in another case where the correctness of the judgment authored by the judge was to be examined by the larger bench, Justice Arun Mishra refused to recuse himself despite requests by some of the parties and, on 23 October 2019, he passed a 56-page order giving reasons for his non-recusal (Indore Development Authority v Manohar Lal and Ors 2019). The Chief Justice of India (CJI) had similarly refused to recuse himself in Assam Detention Centre v Union of India (2019).
Since no reasons have been given for the recusal in the petition of Navlakha, we will discuss here the refusal orders by Justice Mishra and Chief Justice Ranjan Gogoi. Perception, indeed, has a central role in any judicial process and both the cases have raised serious questions about the impartiality of our highest court. Here, we would examine the origin and rationale of the recusal rule, how courts in other countries have dealt with such requests, why the recusal order of Justice Mishra is not consistent with global practice, why the CJI’s order is contrary to even the test laid down by Indian judges, and what changes should be made in the recusal law.
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