Judges should give rea­sons for re­cusal, say most ex­perts

The Times of India (New Delhi edition) - - Times Nation - TIMES NEWS NET­WORK

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

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