THE MORALITY OF RECUSALS
Perception has a huge role in judicial adjudication. People’s perception of the independence of our judges from the government of the day is crucial to the credibility and legitimacy of our constitutional courts. In a lecture delivered at a media event on July 12, 2018, Chief Justice of India (CJI) Ranjan Gogoi rightly said “noisy judges” were a democracy’s first line of defence and that judges should be “fiercely independent”. He went on to say that “civil liberties have nothing to fear from the Judiciary alone, [but] they [do] have to fear everything from [a] union of [the] Judiciary with either of other two branches [of the State].” Indeed. Even a remote possibility of such a union is frightening.
As many as five judges, including the CJI, have, in three separate instances since September 30, recused themselves from hearing civil liberties and human rights activist Gautam Navlakha’s plea in the Bhima-Koregaon case. The case came up before the Supreme Court after a Bombay High Court order rejected Navlakha’s plea to quash the FIR against him for his alleged links with Maoists and the 2018 violence in Bhima-Koregaon, Maharashtra. It’s an open secret that this government is unhappy with ‘noisy’ civil libertarians and dissenting intellectuals. It frequently condemns them as “Urban Naxals” and will likely not take kindly to any judicial order in their favour. But if our judges have even the slightest misapprehension about an adverse government reaction to their judgments, it is really worrisome, for it will mean the demise of judicial independence and constitutionalism.
Ideally, a judge may recuse himself from a proceeding if his impartiality may reasonably be questioned, where the possibility exists of: a personal bias or prejudice concerning a party to the dispute; or of personal knowledge of a disputed fact; or where he has been a lawyer or judge in the matter at some stage. A judge often comes to know of a conflict of interest when there is a request for recusal. No such request was made in Navlakha’s case. While a judge is supposed to follow the dictates of his conscience in choosing to recuse himself, he should ideally specify reasons. The CJI, in this case, presumably recused himself to focus on the Ayodhya hearings, but then he is also the ‘Master of the Rolls’—why was the case listed before him in the first place?
On the other hand, on May 2, 2019, in the Assam Detention Centre case, CJI Gogoi chose not to recuse himself—rejecting civil rights activist Harsh Mander’s explicit request—even though a recusal might have seemed more reasonable in this case, given that being an Ahom from Assam, he could possibly be seen to have a prejudicial interest in a certain outcome of the NRC exercise. Instead, the CJI observed: “…the inability, difficulty or handicap of a judge to hear a particular matter is to be perceived by the judge himself and no one else.” A more tenable position on recusals was articulated by former CJI M.N. Venkatachaliah in Ranjit Thakur, 1987. He said: “As to the tests of likelihood of bias, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however honestly, ‘am I biased’ but to look to the mind of the party before him.”
Did the judges ask this question of themselves in the Navlakha case? We don’t know of any personal biases/ prejudices that might constitute reasonable grounds for the en masse recusals. Enlightened citizens and admirers of our Supreme Court, both at home and abroad, are also in shock at the court’s reluctance to take up even habeas corpus petitions (a legal recourse for citizens against detentions they wish to contest) as also a Constitution bench decision to defer till November 14 the hearing of petitions challenging the abrogation of Jammu and Kashmir’s special status. To these people, the most powerful court in the world is suddenly looking timid and docile. For comparison, the British Supreme Court was widely appreciated for its prompt ruling against Prime Minister Boris Johnson’s decision to prorogue Parliament. One hopes our judges too will stand up to the new challenges and, through their judgments, put to rest all apprehensions about their independence. After all, they have taken oaths to adjudicate without fear or favour. ■
We don’t know of any personal biases that could be reasonable grounds for the en masse recusals in the Navlakha case