Judges should give reasons for recusal, say most experts
New Delhi: The recusal of five Supreme Court judges from hearing activist Gautam Navlakha’s petition for quashing the criminal case against him in the KoregaonBhima case has raised eyebrows in certain quarters.
However, legal experts don’t seem to view this as an alarming development and pointed out that there were 29 other judges in the apex court who could hear the case. Some nevertheless insisted that the reasons for recusal by judges should be stated.
Senior advocates and legal experts did not accept the argument that the recusals in the activist’s case were particularly unprecedented and unusual and said this would not affect proceedings as the case would be listed before another bench. TOI also sought the reaction of four former SC judges but they refused to comment.
“I do not think that it will make any difference in the case. Five judges have recused but there are 29 other judges who could hear the case. There is no crisis. The judges might have expressed their opinion on the issue while giving a lecture or attending some conference. So they are justified in recusing,” senior advocate K T S Tulsi said. However, he added it should be made binding for judges to give the reason for their recusal.
Former attorney general Mukul Rohatgi too said judges should give a reason while withdrawing from a case as people should know the reason behind their decision.
Referring to the recusal of Justice S Ravindra Bhat, senior advocate A M Singhvi said the judge might have recused because he may have appeared as a lawyer for the organisation with which Navlakha is associated. “It is quite understandable that Justice Bhat recused himself either because he has appeared as counsel for or been a member of People’s Union for Democratic Rights,” he added.
Singhvi, however, said there was no need for a judge to state the reason for recusal. “This is between the judge and his conscience. There is no obligation to state why a judge may choose to recuse,” he said
Dealing with the issue of recusal, the apex court had in its 2015 National Judicial Appointments Commission verdict said that reasons for recusal were required to be indicated only in broad terms . In case disclosure of reasons was likely to prejudicially affect any case or cause or interest of someone else, the judge was free to state that on account of personal reasons — which need not be disclosed — he has decided to recuse himself, the apex court said
However, in the same case, Justice Kurien Joseph had said, “Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal... I am of the view that it is a constitutional duty, as reflected by one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping.”
Former solicitor general Mohan Parasaran said hearing on Navlakha’s plea should not be delayed because of the recusals as personal liberty was involved in the case.
Senior lawyer Amit Desai from Mumbai said, “Recusal is a normal phenomenon. It is not unusual or uncommon. All based on conscience of a judge and on his or her perception of possible conflict of interest that may warrant such recusal. Ultimately it depends of each judge. They need not express reasons in a judicial order.”
Judges have recused themselves when there is either a conflict of interest or in cases where the judge has appeared for any one of the parties while practising as a lawyer. Recently, Justice U U Lalit recused himself from the Ayodhya land dispute hearing as he had appeared for one of the persons accused in the Babri Masjid demolition case.
Ex-attorney general Mukul Rohatgi
Senior advocate K T S Tulsi