Why judicial recusals matter: To ensure public confidence in the independence of judiciary

[Editor’s note: This is the full text of the Second Sailabala Pujari Memorial Lecture delivered by Justice Ruma Pal at National Law University, Odisha, on March 31, 2018.]

Before I start I would like to thank the National Law University (NLU), Odisha for the privilege of addressing such a distinguished audience. Having been on the executive council of other National Law Universities, I am aware that these NLUs have come to represent the best faculties and the most excellent of students. I am particularly happy to be speaking at a memorial lecture held in honour of Sailabala Pujari — the first woman advocate of the Cuttack High Court. Being a woman myself, I can only assume the struggles that she must have gone through to succeed in her career but succeed she did as is evident not only from the various books on law written by her but also in the posts she held. I pay her my respectful namaskars.

The choice of today’s subject was left to me by the organisers — the only request being that it should be of topical interest. I have, therefore, chosen to centre my talk on the recent unprecedented event when four senior judges of the Supreme Court held a press conference to bring before the public their grievance regarding the assignment of cases by the Chief Justice to “preferred” benches. The allegation was misunderstood by many — perhaps because the four judges were not very clear as to what their precise objection was to what appeared to be a mere administrative function of the Chief Justice. Reactions ranged from horror at the public appeal regarding an internal matter of the judicial system, to applause for exposing a deep-seated malaise within the judiciary. I will return to this incident later but will only indicate that the issue raised the question on which I have chosen to speak — namely, judicial recusals, and in particular whether the Chief Justice should have recused himself from dealing with certain cases either administratively or judicially. But I must make it clear at the outset that this is neither a thesis, nor have I attempted to exhaustively deal with the subject of recusals.

Principles underlying recusals in Common Law

Underlying the convention of judicial recusal is the common law principle arising out of the concept of natural justice and classically expressed in the Latin maxim nemo debet esse judex in propria causa, which translated means that “no one can be a judge in his own cause”. The obvious reason is that justice connotes even-handedness and one cannot but be biased in one’s own favour. Principles of objective standards of rectitude were developed in England initially only with respect to jurors and was limited to a juror’s pecuniary interest in the outcome of a case. This principle was subsequently extended to judges. One of the earliest cases on judicial bias in Britain — Dimes v. Proprietors of Grand Junction Council — was decided in 1852. There, a decision of the Court of Appeal was set aside by the House of Lords because one of the judges, Lord Cottenham, owned shares in the defendant company. At present, the interest which automatically debars a judge from deciding a case is not only pecuniary but any other interest in the outcome. Such bias vitiates a judgment irrespective of the actual merits of the judgment. Illustrative of this is the Pinochet case series. Augusto Pinochet Duarte was a former head of Chile. He claimed immunity from extradition as such former head of state. In the first appeal, a majority of 5 judges of the House of Lords including Lord Hoffman, rejected Pinochet’s claim. This decision was challenged by Pinochet on the ground that Lord Hoffman was biased because of his association with the intervening party — Amnesty International — in the first Appeal. Pinochet’s application was allowed by a bench (excluding Lord Hoffman) and the earlier decision of the House of Lords was set aside, inter alia on the finding that though Lord Hoffman may not have been actually biased, but his links with the cause of Amnesty International were “so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand”. Ultimately, however, on a reconsideration of the merits, seven judges (again excluding Lord Hoffman) of the House of Lords rejected Pinochet’s claim to immunity from extradition.

What follows from these decisions is noteworthy; namely, (i) that the application challenging the decision in the first appeal on the ground of bias was heard by a bench in which Lord Hoffman himself did not participate; (ii) the entire appeal was reheard on merits despite the extra costs and judicial time involved; and (iii) that the primary object of recusals is to ensure public confidence in the judiciary.

From actual to a reasonable apprehension of bias

In addition to the bar on a judge’s actual bias or interest in a cause, the reasonable perception or suspicion of bias by other people is sufficient to vitiate a hearing. The House of Lords in Dimes in 1852 had made it clear that they had aside the judgment not on account of any actual bias, but because of the appearance of bias. This was emphatically reaffirmed by the House of Lords in 1923 when it set aside a conviction on the ground that the clerk of the Court who was present when the judges were considering the sentence, was a member of the solicitor’s firm of one of the appearing parties. Defending the judges, it was submitted that the clerk had not in fact taken part in any of the deliberations. Rejecting the submission Lord Hewart, C J said: “… [I]t is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done“.

The principle of judicial disqualification was further widened by English courts from the “appearance of bias” to a “real likelihood of bias”. These principles were adopted by India as part of the common law inherited by India from the British and the right to be heard by an impartial judge has been declared to be a fundamental right under Article 21 of the Constitution.

Judicial impartiality as a fundamental right

The essential nature of judicial impartiality as a human right was also recognised by the UN Declaration of Human Rights, 1948 Article 10 of which provides — “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. This was followed by The International Covenant on Civil and Political Rights 1966 in which Article 14.1 establishes the ground rule that “everyone must be equal before the courts, and any hearing must take place … before a competent, independent and impartial tribunal”.

Although India was a party to the 1948 Declaration and ratified the Covenant in 1979, there has been no move by successive governments to lay down statutory rules of judicial conduct. The need for domestic application of international norms led to formulation of the Bangalore Principles, 1988 followed in 2011 by a fresh set of Principles in which the necessity for judges to not only maintain but also conduct themselves in such a manner as would obviate any suspicion of impartiality, integrity or impropriety were clearly enunciated. A resolution was also passed in the Chief Justices’ Conference held at New Delhi on September 18-19, 1992 to restate “the pre-existing and universally accepted norms, guidelines and conventions reflecting the high values of judicial life to be followed by Judges during their tenure of office”.

The first value of the Restatement which was adopted by the Supreme Court in 1997 is: “Justice must not merely be done but it must also be seen as done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of the perception, has to be avoided.”

Of the three maxims underlying the principle of recusals, that is — (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar’s wife, should be above suspicion — it is the last which has assumed importance. Now even the suspicion of judicial impartiality is the sine qua non of public acceptance of judicial pronouncements. To sum up: recusal is a must not only where there is actual or the possibility of bias in a judge, but also where there may be a reasonable perception of bias and this principle is equally applicable to all actions of a judge — administrative, judicial or personal — which may have an impact on the outcome of litigation. At stake is the credibility of the institution of dispensing justice fairly and objectively.

Who is to decide the issue of recusal?

There is no statutory law governing recusals by judges in India except the oath of office (Articles 124(6) and 219 read with Schedule III ), which the Constitution requires every judge to take on appointment to deliver justice without fear or favour, affection or ill will. If therefore a judge cannot be true to his/her oath in a particular case, then he/she should withdraw or recuse from further hearing of that matter. Traditionally, recusal was left to the discretion of judges, possibly because a judge was assumed to be strictly impartial and was in the best position to assess whether in deciding a case his/her personal interest whether pecuniary or otherwise was involved. There was a time in India when the faith in the judiciary was so robust that neither litigant nor lawyer questioned the appearance of a near relative as a lawyer before a judge. At least in the Calcutta High Court, I know of an instance where the son-in-law of a judge (Justice S R Das and Barrister A K Sen) used to appear before him without demur because of the public confidence in the judge’s absolute integrity and impartiality.

However, over the years that public trust was clearly betrayed not only in India but in courts around the world. I remember several instances of judicial partiality in my career as a lawyer which ended several decades ago. On one such occasion, we (the Senior Counsel and I) were informed that the judge before whom we were appearing was “fixable”. In another, the appearance of a particular counsel at the last minute of a hearing perceptibly changed the outcome of a case. Similar occurrences have no doubt been experienced by other lawyers. With the change in the context therefore the need is for higher standards of judicial behaviour. As said by Shetreet and Turenne in their book Judges on Trial: “The standards of impartiality, which shape the threshold for a successful allegation of bias, are thus high, higher as time goes by, set by the indispensable requirement of public confidence in the administration of justice.”

From the very subjective approach to the issue of recusal by which the judge disqualified himself/herself from dealing with a matter, imputations of judicial bias have been increasing. Earlier reported cases show that for the most part cases which were considered by Indian courts related to the bias of a tribunal or lower court, including of the High Court, as a ground of appeal before the Supreme Court. Demonstrable impartiality was also required of administrative officers discharging quasi-judicial functions. In the absence of reported cases relating directly to judges of the Supreme Court till 2012, I can only assume that by and large judges had applied the standards of impartiality embedded in their oath of office and voluntarily recused themselves from hearing cases in which they were personally involved.

However, since 2012, there are reported cases where the Supreme Court itself has been in the centre of controversies relating to recusals. In all the decisions imputations of the appearance of bias against judges of the Supreme Court related to the discharge of judicial functions. They were all negatived by the bench hearing the case which included the judge against whom the allegations were made. The ground for rejection was that the litigant was indulging in ‘forum shopping’ or in other words choosing a judge who might be more favourably disposed towards the party making the prayer for recusal.

I do not intend to question the correctness of those decisions today but in my opinion it would have been more in keeping with the high standards of judicial credibility if the decisions were delivered by a bench excluding the judge against whom the imputations were leveled. It is highly unlikely that the other judges would come to a finding of bias in the presence of their colleague even if they were so minded.

Bias and administrative actions

Returning to the controversial press conference held by the four judges of the Supreme Court, the question is: Can the principle of bias be applied even to an administrative function of the Chief Justice namely the assignment of cases and composition of benches as Master of the Roster? In his BG Verghese memorial lecture, former Chief Justice of Delhi High Court, A P Shah, called the Chief Justice “first among equals”, and no more.

That the Chief Justice of a High Court or the Supreme Court determines the composition of a bench as well as the assignment of cases is a convention of administrative convenience. But the fact remains that administrative decisions sometimes severely impact judicial decisions. Although ideally judges are required to be dispassionate and detached, there have been judges with known proclivities. We have had judges who were pro-landlord, pro-labour, pro-industry, pro-farmer, anti-cattle slaughter and so on. The outcome of a case often rests on these subjective elements. The seemingly innocent allocation of cases to and the formation of benches of judges may, therefore, have a direct connection with the judicial outcome of a case. To obviate the element of discretion in the allocation of cases, some Chief Justices have divided work subject wise, so that a particular bench takes up all matters relating to that subject. Other Courts have resorted to the computerisation of cases so that matters are allocated electronically. Nevertheless, discretionary power is retained by the Chief Justice to selectively constitute benches and allocate work. It is in this context that the exercise of discretion by the Chief Justice of India has been called into question.

Although the discretion of the Chief Justice has never been called into question — certainly not publicly, the Supreme Court has itself held in several cases that a discretionary power (in this case the allocation of cases or formation of benches by the Chief Justice) must be exercised fairly and not be misused “according to one’s will and private affections”. As Justice Sawant has observed in Delhi Transport Corporation v. D T C Mazdoor Congress: “There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law”.

The question then is should the Chief Justice have exercised his discretion at all in matters, whether administrative or judicial, in which there was a likelihood of an appearance of his own bias or should he have recused himself and allowed the senior most judge to do so?

This was not the first case relating to allegations against the present Chief Justice of India. But the precise controversy which probably led to the judges’ press conference related to the admissions to medical colleges. As that case nicely illustrates the issue of recusal I will refer to it in some detail.

An instance of bias?

In 2016, several orders were passed by the Government of India debarring admission of students for the years 2017-18 and 2018-2019 in various medical colleges. Between January 19, 2017 and September 18, 2017, several orders were passed by different benches — all presided over by the Chief Justice of India — giving relief to medical colleges with regard to admissions and the encashment of bank guarantees furnished by the colleges in favour of the Government. On September 9, 2017 an FIR was registered under Section 8 of the Prevention of Corruption Act, 1988 and Section 120-B IPC by the Central Bureau of Investigation against a retired High Court Judge and implicating unnamed sitting judges, including judges of the Supreme Court. The FIR contained serious allegations of bribery to influence the outcome of the medical college cases and revealed “a nexus between the middlemen, hawala dealers and senior public functionaries, including persons in the judicial field”.

As all the orders relating to the medical colleges were passed by benches presided over by the Chief Justice, on November 8, 2017, a writ petition was filed by the Campaign for Judicial Accountability and Reforms (CJAR) before the bench of the senior most puisne judge namely, Justice Chelameswar, for setting up a Special Investigative Commission to inquire into allegations of bribery against sitting judges of the Supreme Court in respect of admissions to medical colleges. It was alleged in the petition that “propriety demands that the Hon’ble Chief Justice of India ought not to deal with the present petition either on the judicial side, or even on the administrative side“. Justice Chelameswar directed the matter to be listed on November 10, 2017. So much is a matter of record. From the facts as transpired subsequently I can only assume that on November 9, 2017, the Chief Justice issued an administrative direction directing the matter to be listed before a Bench presided over by Justice Sikri on November 10, 2017, instead of Justice Chelameswar. This action and the subsequent actions of the Chief Justice in the matter effectively negated the submission of the petitioners that he should not deal with the matter either administratively or judicially. This was done without giving the petitioners an opportunity of being heard.

November 10, 2017 proved to be an action-packed day for the Supreme Court. The writ petition filed by CJAR was taken up by the bench presided over by Justice Sikri, which directed the matter to be listed before the CJ “for passing appropriate orders for listing this matter”. A second writ petition for the same reliefs as the first petition was filed by Kamini Jaiswal, Senior Advocate and a member of CJAR before the bench headed by Justice Chelameswar, which directed the matter to be heard at 12:45 pm. The Chief Justice of India rose from the hearing of the case then being heard before him and issued an order on the administrative side to the effect that no judge apart from the Chief Justice could direct a matter to be heard on the same date. Accordingly, when at 12:45 pm the second writ petition was taken up by bench presided over by Justice Chelameswar, did not hear the matter but directed: “… matter be heard by the Constitution Bench of the first five Judges in the order of seniority of this Court. Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, November 13, 2017”.

However, within two hours, at 2:45 pm, a Constitution Bench composed of five judges of which three judges, including the Chief Justice himself had been party to the orders passed in the medical colleges cases, and two other judges — Justices Arun Mishra and R K Agarwal — sat to determine the impact of Justice Chelameswar’s order referring the second writ petition to a bench of the five senior most judges. This, despite the fact that no one had appealed from Justice Chelameswar’s order and it is questionable whether an intra-court appeal at all lies in the Supreme Court.

At the hearing, by all accounts in the press, there was an unprecedented ruckus in court when the bench allowed lawyers who were not parties to the proceedings to address the court. According to the petitioners’ lawyer, he was not allowed to make any submission by the Chief Justice and he left without making any submission. The Constitution Bench immediately delivered a judgment to the effect that the Chief Justice as Master of the Roster alone had the power to constitute benches and assign matters and that “any order passed which is contrary to this order be treated as ineffective in law and not binding on the Chief Justice of India”.

The question of possible bias of the Chief Justice and its effect on the Chief Justice’s power as Master of the Roster was not adverted to. Both writ petitions were then assigned by the Chief Justice to a Bench of three judges all three of whom had been part of the hastily constituted Constitutional Bench. The three judges dismissed both the writ petitions — one of them with exemplary costs of Rs 25 lakhs. They relied upon the order which had been passed by the Constitution Bench, to hold that Justice Chelameswar’s order was “ineffective in law, not binding on the Hon’ble Chief Justice of India”. It was also held relying on the judgment in D C Saxena v. Chief Justice of India that even when there is an allegation against the Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him. The Bench then went into the merits of the case pending before the CBI by holding that there was no merit in the allegations against the Chief Justice. I have two brief criticisms to offer: (i) The bench lost sight of the fact that the then Chief Justice against whom the allegations were made did not form part of the bench in D C Saxena’s case. (ii) The merits of the allegations pending enquiry before the CBI were not in issue in either of the writ petitions.

The course of events was unprecedented and led to public debates both in the print and electronic media which cast doubts not only on the functioning of the Supreme Court but on the credibility of the entire judicial system. Several questions were left unanswered both by the Constitution Bench as well as the Bench of three judges which ultimately dismissed the writ petitions — in particular whether there were sufficient facts to raise an apprehension of bias in the Chief Justice. Given the facts can it be said that the allegations against the Chief Justice of possible bias were fanciful? If the apprehension of bias was reasonable, should the Chief Justice have participated either administratively or judicially in the subsequent stages of the matters?

In other words — should the Chief Justice recused himself from dealing with the matter of medical admissions in any matter whatsoever? Should the procedural convention of the assignment of cases and composition of benches by the Chief Justice have given way to the legal principles of bias? The controversial press conference unfortunately diverted the attention of discussion from these core issues to the propriety of making public an internal problem of the Supreme Court.

But the problem was not an internal one such as a mere difference of opinion between judges. Appearances and apprehensions of judicial bias are destructive of public trust in the legal system as a whole. Suspicious judicial behaviour which till 2017 had been the subject matter of speculation in the corridors of the courts is now being debated in public.

The solution does not lie either in silence and relying on short term public memory or in leaving the burden of re-shoring the Supreme Court’s lost credibility on the shoulders of the upright judges. The solution lies in openly acknowledging that the problem exists and needs to be dealt with. According to a public statement made by several eminent persons[1] they were “very disappointed” with the approach of the Supreme Court and asserted that “a robust and credible system for investigating complaints against judges and holding them accountable for their misconduct and corruption must be put in place”.

What ought to be done

That there is at present a crisis in the credibility of and public confidence in the Supreme Court and consequently the judicial system as a whole cannot be gainsaid. The moot questions are who can or will put the “credible system” in place and what should be the “system”? I would like to conclude by offering a few suggestions:

First: objective criteria dealing with recusals need to be formulated keeping in mind the need to allay public suspicion of the judicial process. Second: when there is any doubt whether a judge should recuse herself/himself or not, the balance should be tilted in favour of recusal. Third: the more serious the allegation objectively assessed, the greater the need for recusal. Fourth: the judge/judges against whom imputations are made should not be party to any decision or administrative action in deciding his/her or their bias. Fifth: there is a need for these questions to be addressed and solved preferably legislatively rather than judicially. While allegations of bias against judges whose decisions are appealable may be decided judicially, the same principles may not apply where the actions of the final court itself are the subject matter of inquiry.

Finally, credibility of an institution must be truthfully deserved. Maintaining a mere façade of credibility by utilising the court’s powers of contempt to suppress the exposition of truth will one day destroy the institution.

[Editor’s note: This is the full text of the speech delivered by Justice Ruma Pal at National Law University, Odisha, on March 31, 2018.]