High Court of Kerala under the scanner on the issue of Recusal

Among the High Courts of our country, Kerala High Court is one which has always maintained high traditions and a good reputation.  The Judges who adorned seats in the Supreme Court, on elevation from the Kerala High Court also have maintained a high profile. Tested from standards like integrity, efficiency, quality and quantity of output, they really occupy an enviable position.   It is not usual, therefore, that the High Court of this small state should come under the criticism of the media.    Recently, however, it did.  That was when four Judges of our High Court recused themselves in quick succession and refused to hear the Lavalin case which involves the question of convicting CPI(M) leader Sri. Pinarayi Vijayan.  

That eminent persons like Mr. Justice V.R. Krishna Iyer, former Judge of the Supreme Court of India joined the array of critics of Judges’ action in this regard added fuel to the fire.  If News paper reports are correct, it virtually ended in fire.  That was when the Kerala Students Union, the student wing of the Congress Party, organized a procession in Kochi, marched towards the official residence of the Chief Justice and burnt the effigies of the Judges concerned to register their strong protest and condemnation.  Earlier, Sri. Sudhakaran, M.P. had exhorted the Judges concerned to resign and quit the constitutional post if they were unable to discharge the duty expected of them.  He stamped them a disgrace to the judiciary.  Mr. Justice (Retd) V.R. Krishna Iyer also called the act of recusal, a breach of the solemn obligation vested in the Judges justifying impeachment by Parliament leading to their dismissal by the President.  Reportedly, he has already written a letter addressed to the Governor of the State condemning that these judges’ action amounted to ‘grave dereliction of duty by the highest judiciary in the State’. Kerala   Home Minister Sri. Ramesh Chennithala was more circumspect.  He said the frequent recusal by judges seemed unnatural;  but he did not want to elaborate it further as the matter concerned the Judiciary. Senior lawyer and former MP-Mr. Sebastian Paul pointed out that the recusals might give rise to unnecessary doubts and allegations about courts.

The act of excusing oneself from a case, called Recusal in the legal parlance, is something that we can see in one court or the other, almost every day.  That occurs when a Judge before whom a case comes up simply dictates to the Secretary-stenographer “Avoid”. Members of the Bar and through them the litigants then understand that the judge was not prepared to hear the case as it was embarrassing for him to dispose it off on some valid personal ground.  Normally no one asks the Judge for the reasons.  The tradition is that everyone presumes that there was some unavoidable and valid reason which made it improper and illegal for the Judge to pass judgment in the case.

 To the layman such practices and the justifications there for, may not be familiar.  When the incident in question arising in Lavalin case  was widely reported in the media, the Aam Admi’s curiosity was also aroused.  They started asking the question whether a Judge, according to his sweet will and pleasure, was free to choose the cases that he would hear and decide and to avoid cases which he might dislike to hear. The answer should definitely be an emphatic no.  A Full Bench of Allahabad High Court in Sanjay Kumar Srivastava v. Acting Chief Justice, 1996 AWC 644, going into this question, had observed that if  the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they would like to hear and decide, the machinery of the court would have collapsed and judicial functioning of the court could have ceased by generation of internal strife on account of hankering for a particular jurisdiction or a particular case.

So, why and when is a case be justifiably avoided?  Avoidance occurs due to the application of the golden rule that justice should not only be done; but it should also appear to be done.  If there are grounds for a reasonable suspicion to the bar and litigants that the particular judge who is to hear a case is biased, it is better that he should not hear it.  This position is well accepted for long. The Kerala High Court had applied the principle by issuing Circular No: 27/69 way back in 1969 when it directed the subordinate judicial officers that if a litigation that came up before a judicial officer actually concerned his own interests or that of his close relatives, he should not hear the case and instead, write to the High Court through the District Judge and await orders. It is for the High Court then to consider whether it was necessary to transfer of the case to some other judicial officer of equal competence and stature to decide the case or to transfer the Judicial Officer himself from that court so that his substitute could be asked to hear and decide the case.  Statutory recognition of the principle can be found in S.479 of the Code of Criminal procedure also where it states that no Judge or Magistrate shall, except with the permission of the court to which an appeal lies from his court, try any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

The same principle is followed by the Judges in the higher judiciary too.  The difference here, arising from tradition and practice is that he would simply ‘avoid’ the case once he is satisfied that circumstances warrant that he should not himself hear the case. When he does so, the immediate consequence is that the case goes to the Chief Justice who has the liberty to assign it to another Judge.

Though the general rule is that judges are bound to adjudicate every case posted before them; recusal is an exception to this.  Why should there by such an exception? Because it is one of the basic principles of natural justice that no one should be a judge of his own cause.  As an extension of this principle, he is also unfit to decide a case in which he or his close relatives, has an economic interest. It follows that he should not preside over a case involving a family member, or conducts a trial in which his close relative is a major witness, or a lawsuit that involves a company in which he or his close relative owns a significant amount of shares or other interest. Recusal is also fully justified if one of the counsel who appears for a party in the case is his close relative like son, daughter, son in law, daughter in law, or close associate in the past, like, say, his teacher, class mate, friend, former junior or senior counsel, former client from whom he had or had not received fees etc.  Whatever be the decision that the particular Judge might honestly give in such a case, either party may believe that he won or lost the lis because of this hidden relationship. In some cases, a judge may have to recuse herself as he had worked on it in the past, while he was a prosecutor or attorney or an Advocate. Recusal is common in such cases also. Situations might vary widely and it is not possible to place such circumstances in pigeon holes.

Judges, on their own, decided to re affirm their dedication to the values applicable to them.  In the restatement of values so adopted by the Judges in the Chief Justices Conference of 1999, mention is found about recusal too. Clause (7) provides that “a Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned”. Again, Clause (11 )  stipulates that a  “Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”  Clause (16) is to the effect that “Every Judge must,  at all times,  be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held”.  But these grounds are not exhaustive because the re statement itself provides that these are not meant to be exhaustive but only illustrative of what is expected of a Judge.

Recusal may be justified, nay, warranted, in a class of cases as well. When that becomes necessary, the consistent practice followed by the Courts has been to give a standing instruction to the Registrar of the Court to ensure that cases of the particular category should never be sent up before him.  An example of this type is when a partner of a law firm takes over as Judge and decides that he should not hear any case filed from his former office. This is a healthy practice as credibility of the Judge as also credibility of the court are matters of paramount importance in the field of administration of justice.

The legal position as above is not confined to India.  Elsewhere also the position is similar. The code of judicial conduct drafted by the American Bar Association in 1972 and adopted by most of the states there and by the federal government, outlines situations in which a judge should disqualify himself from presiding over a matter. Such situations include the judge's personal bias or prejudice toward a matter or its participants, personal knowledge of the facts that are disputed in a case, a professional or familial relationship with a party or an attorney, a financial interest in the outcome of the matter, etc.

A judge has to decide on the question of recusal according to his own conscience and discretion.  Sometimes it may so happen that the parties to a proceeding may repose immense faith on the quality of the Judge and waive the judge's disqualification and request him to continue with the case; but this is usually after a mention of the apparent disqualification and after a discussion on the matter that would take place in the open court.  The advantage here is that no suspicion would arise at later stages of the case and the decision would be well accepted by all concerned, subject of course, to the right of the losing party to agitate the matter further before the appellate/provisional court.

Once an Advocate shifts his seat from the Bar to the Bench, a lot of change takes place in his life style.  He not only keeps himself aloof from the Bar and the public to a large extent. This eliminates chances of recommendation being made to him on behalf of one or the other party. In spite of this there may be rare cases where a relative, friend or other acquaintance who is ignorant of the court system and transparency, might venture to make an inappropriate mention about a case that is likely to come up before the Judge.  Rather than making a vociferous reaction to this, the Judge often would only condemn this move, call it inappropriate and tell him in clear terms that according to judicial decorum this case would certainly go to another Judge for disposal.  I have myself faced the wrath of one of my beloved school teachers in a similar situation. That is an occupational hazard and nothing more. When a case of the above category eventually comes before the particular Judge, he will certainly avoid the case; but might not, under the present state of things, record anywhere the reasons leading to the recusal.  He would only record in the case file through his Secretary that he was avoiding the case and that it should be posted before another Bench.

The mandatory oath that one has to take before he sits in the Judge’s chair is prescribed by Art. 219 of the Constitution.  This is to the effect that he would bear true faith and allegiance to the Constitution of India as by law established; that he would uphold the sovereignty and integrity of India; that he would duly and faithfully and to the best of his ability, knowledge and judgment, perform the duties of his office without fear or favour, affection or ill-will and that he would uphold the Constitution and the laws.  So there is no doubt at all that a Judge should perform the duties of his office without fear or favour, affection or ill-will and irrespective of whether the parties to the case are super powers, political big wigs, muscle men  or not. If one shies away from this solemn responsibility, that is certainly a violation of the duty cast under the constitution and is to be condemned in strong terms.  But the difficulty here is that the real reason for recusal will often be hidden in the mind of the Judge unless of course, he decides to reveal it.

Lawyers who are called in to take the constitutional oath and sit in the Judge’s chair should be competent, well disciplined and able to withstand pressures and influence of all sorts.  Threats are not unfamiliar to them and no Judge should run away from the responsibility of deciding cases merely because one of the parties in a case before him is a mafia leader, business tycoon or Political big wig.  Judicial training equips him with the guts to face such situations. The Judges (Protection) Act 1985 is also there to protect him from ill conceived litigations. Nevertheless, it is possible that attempts would be made to influence him one way or the other.  In that event, he may adopt the recourse to recusal because all the efforts that he might take to arrive at and deliver a just decision in the case, according to the best of his conscience, would turn futile if it becomes known later that there was an attempt at influencing him.  If the party for whom such secret mention was made wins the case, he and his counsel would believe that the decision came that way because of the influence that he had exerted.  As for the losing party, he would be 100% sure that he lost the case because of the influence of the other party.   It is therefore essential that the Judge applies his common sense and take the decision to recuse himself if his judicial conscience dictates him to do so. Needless to say that this should be on a judicious exercise of all options.

Recusal is rather the exception and it should not be taken lightly. It is only when there is a genuine reason to question a judge’s impartiality that he should withdraw himself from a case. There is as much obligation for a judge not to recuse himself where there is no valid reason, as there is, for him to do so, where there is such a reason. The main decisive factors are his own judicial discipline and judicial honesty.

Regarding the criteria to be followed in the matter, judicial precedents are not wanting.  They too declare that a judge may not sit in judgment on a case where he has a financial personal, familial, or financial interest in the outcome of a case, or where he has shown himself to be so prejudiced against one of the parties or the case’s subject matter is such that he cannot be trusted to rule fairly. If, in any case, the Judge becomes aware of any matter which can arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. The test should be whether a fair minded and informed person, apprised of all the facts, would have a serious apprehension of bias on the facts and circumstances of the case. In this context the words of wisdom sounded in State of Rajasthan v. Prakash Chand & Ors., AIR 1998 SC 1344 deserves special mention.

“Judges must be circumspect and self-disciplined in the discharge of their judicial functions......It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self-inflicted mortal wounds". We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognized objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices”. 

The decisive factor, in the matter of justification or otherwise of recusal is as to what exactly was the reason.  Perhaps that aspect, under the present system, will hide in the mind of the judge only. But then the normal human tendency is to peep into the veil to see what is hidden inside.   I believe that the current debate over the ethics of recusal has more to do with the lack of transparency about the reasons.  When a judge recuses himself from a case, the litigants and the public would be curious to know why. Being open on the issue may perhaps convince society at large about the noble intentions of the judge and put speculations to rest. But if the reason is swept under the carpet, it may be interpreted as either a cowardly retreat or a step in aid to torpedo the case.

 So where lies the solution?  My own view is that such controversies can be avoided if it is made obligatory for the Judge to give reasons also for recusal.  The subordinate judiciary already does it.  The last of the four judges who recused from the Lavalin case (Mr. Justice N.K. Balakrishnan) volunteered to report the reasons as well and set a most welcome precedent.  But here again, there is real problem.  Let me illustrate this.  Suppose Judge records on the file that he was recusing himself as the petitioner was his brother.  The Judge to whom the case goes next, might see this and noticing the fact that his colleague is indirectly interested in the case, might himself avoid the case.  If he does not do so and decides the case himself and the decision happens to be in favour of the ‘brother’, the losing party would really believe that the decision went against him because the new Judge wanted to help his judicial brother. I leave the consequences of the reverse position (decision against the ‘brother’) to the fancy of  the reader.  Perhaps the solution to this malady might be for the judge to record merely that “one of the parties to the case is my relative and hence I recuse myself” without giving further details.

It is not as though the fraternity of Judges itself cannot provide a remedy.  As the Re statement of values voluntarily adopted by them in 1999 itself states that the principles mentioned therein are not meant to be exhaustive;  but only illustrative of what is expected of a Judge, there is always scope for improvement based on experiences and hence it would be a good idea that the next All India Chief Justices Conference thinks of inserting an appropriate clause in the Restatement of values with regard to giving of reasons for recusal as well;  but bearing in mind the caution required in the matter too.

There is scope for introducing legal provisions also in the matter. These are days of parliamentary intervention aimed at judicial reforms, right from the system for selection of Judges.  Half a dozen Bills of this species are presently pending before the Parliament.  The Government of India may therefore consider inclusion of a provision relating to recusal in one of these Judicial Reforms Bills. Assuming that self regulation and parliamentary intervention fail, then also many alternatives including restoration of the previous system of posting newly appointed Judges in other States remain wide open to provide effective remedy.

I feel that the Bar has also a vital role to play in the matter.  If changes are required in the matter of recusal, let the Bar Associations come forward and pass resolutions demanding appropriate changes.  After all,  Fiat justitia ruat caelum is the beacon light that guides all of us.

Author, Justice M.R. Hariharan Nair, is Former Judge, High Court of Kerala.