Thursday, 31 October 2019

Recusal

The Constitution vests a lot of power and certain amount of immunity in judges. Fairness and impartiality are the fundamental qualities to be possessed by a judge. 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. But the question that arises is whether such choices of significance be left to the prerogative of the individual judges. 
  • Judges recuse themselves when they take no part in deciding cases that they would otherwise help decide. The judges to recuse themselves from cases where the judge has a financial interest in the case's outcome or where there is otherwise a strong possibility that the judge's decision will be biased. 
  • Any party in a lawsuit may request that a judge recuse him or herself.
  • This question is the pondering of circumstances where an act of recusal becomes a contravention to that judge’s legal responsibility and moral duty to hear a matter and deliver unprejudiced justice.
  • Also, are the judges accountable for explaining the reasons for recusal to the concerned parties?
  • The professional ethics behind recusal of a judge has to do with the opacity about the reasons as to which the recusal has happened. Since India is a liberal democracy, the citizens expect accountability from public servants. By not giving reasons to recusal the judge is putting herself under speculation by the public. 
  • If a judge finds out that his brother/ sister judge recused for a specific reason, there could be an inclination from the new judge to give a favorable verdict for the party in whose favor the other judge recused.
  • Recusal is not an instance where the judiciary is under threat as the aggrieved party would like to know why a judge has recused.
  • Judges must give their reasons in writing for recusing themselves from specific cases.
  • There has to be a requirement of statutory obligation on the judges to inform the litigants as to why there is a decision to recuse from hearing. Recusal should be used sparingly like the emergency provision in the Indian Constitution.
In a 1980 appeal against Shell and BP, in England, in which “the registrar of civil appeals was unable to assemble three judges who had no shares in either defendant.” Invariably, therefore, when a judge owns shares in one of the litigants what we expect is disclosure of the fact, and if neither party objects one might think it’s acceptable for the judge to hear the case. But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.


Independence and impartiality are the twin pillars without which justice cannot stand,
and the purpose of recusal is to underpin them - 
Sir Stephen Sedley


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