The Duty To Decide

Widespread media reports concerning the litigation of Indian Forest Service officer and Magsaysay awardee Sanjiv Chaturvedi point to an extraordinary sequence of judicial recusals extending over a decade. Sixteen judges and members across the Supreme Court, the High Courts of Uttarakhand and Allahabad, several benches of the Central Administrative Tribunal and courts of Additional Chief Judicial Magistrates at Nainital and Shimla have withdrawn from hearing his petitions. Each withdrawal, considered alone, might appear an act of prudence. But taken together, they reveal a deeper institutional unease. At what point does the duty to appear impartial yield to the greater duty to decide?

I. The constitutional duty

Every judge swears to perform the duties of office “without fear or favour, affection or ill-will.” That oath presupposes decision-making as a constitutional obligation, not an act of discretion. Justice J.S. Khehar, when asked to recuse from the NJAC Bench, refused. In his words, “A Judge may recuse for legitimate reasons. But recusal cannot be made to appease the perceptions of a party… To withdraw without sufficient cause would be an abdication of duty.” [(2016) 5 SCC 1, paras 24-26.] The independence of the judiciary is realised not only by abstention but also through adjudication.

The judicial function is not discretionary; it is a trust under the Constitution. To decline jurisdiction without compelling cause risks breaching not only procedural expectation but the citizen's rights under Articles 14 and 21 – equality before the law and the right to a fair hearing.

II. The jurisprudence of restraint

The common law starts from the presumption of impartiality. As Okpaluba and Maloka observe, “There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal must overcome.” [The Fundamental Principles of Recusal in Common Law (2022) p.88.] The companion principle is the duty to sit: The South African Constitutional Court, in President of the Republic of South Africa v. SARFU, echoed this: “Judicial officers have a duty to sit in all cases in which they are not disqualified. Judges do not choose their cases; litigants do not choose their judges.” [(1999) ZACC 9 : 1999 (4) SA 147 (CC)]. To yield to mere perception is to turn discretion into weakness.

That principle – the duty to sit – defines the boundary between conscience and convenience. As the Ontario Court of Appeal held in Beard Winter LLP v. Shekdar ([2016] ONCA 493), “To step aside in the face of a specious bias claim is to give credence to the most objectionable tactics” (p.92). Genuine conflict must compel withdrawal, frivolous or tactical objections must be resisted. Recusal, in short, is not the default. It is the exception, justified only when impartiality is genuinely in question.

III. The Indian line of authority

Indian courts have long travelled from the rigidity of automatic disqualification to a standard of reasonable apprehension. In Manak Lal v Prem Chand Singhvi (AIR 1957 SC 425), even the smallest pecuniary interest was held sufficient to disqualify. Ashok Kumar Yadav v State of Haryana (AIR 1987 SC 454) refined the rule: a “real likelihood of bias,” not remote possibility, justifies recusal, but the doctrine of necessity allows a judge to proceed when no alternative exists. P.K. Ghosh v J.G. Rajput ((1995) 6 SCC 744) recognised the litigant's reasonable expectation of impartial hearing. Later, Indore Development Authority v Manoharlal (MANU/SC/1474/2019) cautioned that recusal must not become a convenient means to choose the bench of one's liking.

As the NLIU Law Review observes, quoting Lord Justice Sedley in his foreword to Grant Hammond's book, Judicial Recusal, “Fear and favour are the enemies of independence … affection and ill-will undermine impartiality.” (Vol IX Issue II (2023) p.502.) That warning remains apt.

IV. The comparative lens

Across jurisdictions, the tests for bias converge on reasonableness. The House of Lords in Porter v Magill ([2002] 2 AC 357) asked whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” In Locabail (UK) Ltd. v. Bayfield Properties Ltd. ([2000] QB 451) the Court of Appeal added that judges must not yield to frivolous objections but that “genuine doubt should resolve in favour of recusal.”

In the United States, Caperton v. A.T. Massey Coal Co. (556 U.S. 868 (2009)) held that due process demands recusal where there exists a “serious risk of actual bias.” Scholars Broyde and Hall “advocate a system where recusal decisions are ultimately made by the entire Court. Individual justices may make their own recusal decision in the first instance, but that decision is ultimately reviewable by the entire Court.” (Michael J. Broyde & Hayden H. Hall, Recusal Reform: Treating a Justice's Disqualification as a Legal Issue, Vol. 10, U. Pa. J.K. & Pub. Affairs) (p.84).

Different systems, one concern: impartiality cannot rest on personal conscience alone.

V. The peril of silence

Modern practice too often substitutes brevity for transparency. A laconic “Not before me” is treated as decorum. Silence is defended as dignity, but dignity cannot displace duty. The public can accept a decision they disagree with; what they cannot accept is silence where reason is owed. A transparent system of disclosure would not diminish the judiciary, it would only dignify it.

VI. The misuse of recusal by litigants

Very often, in cases of recusal, the judge alone cannot be faulted. There are many instances where unscrupulous litigants, seeking to avoid an inconvenient or upright judge, resort to indirect manoeuvres. A common tactic is to engage or obtain a vakalatnama from an advocate who bears some close personal or familial ties with the judge, leaving the judge with no real option but to step aside. The consequence is that an ethical judge's integrity is turned against him.

While the specific causes of recusals in any particular matter may remain unclear, it is all the more necessary – especially in cases such Sanjiv Chaturvedi's where there has been a series of recusals – that reasons be recorded. A brief but reasoned order not only upholds transparency but also preserves public confidence in the process. It also exposes the unscrupulous litigant and help preserve the pristineness of the stream of justice.

VII. Balancing discretion and duty

Article 50 of the Constitution calls for separation from the executive, not separation from responsibility. Independence must coexist with accountability. Justice Khehar's words in the NJAC decision (Supreme Court Advocates-on-Record Association & another v. Union of India [(2015) 13 S.C.R. 1] anchor that balance: a judge who recuses without sufficient cause abdicates duty. Indore Development Authority reiterated that recusal must not be a device for “bench-hunting.” As Fundamental Principles (supra) notes, “Judicial officers have a duty to sit in all cases in which they are not disqualified.” (p.93.) To that must be added: excess recusal imperils it.

True independence lies not in avoidance, but in endurance - in hearing matters despite discomfort when conscience permits. Excess recusal, like overcaution in medicine, can injure the very body it seeks to protect.

VIII. The culture of adjudicative courage

“A judge has a duty to hear a case unless the test for recusal is met,” says the Supreme Court of Namibia in the case of The State v. S S H (Case No.SA 29/2016, reported as [2017] NASC 28]. But courage lies in deciding, not in departing. The Indian judiciary has shown fortitude in crises of liberty and equality; it must now display the same resolve in matters that test internal fortitude. As Sedley LJ observed, “Fear and favour are the enemies of independence.” (NLIU Law Review, p.502.) A judiciary that retreats too readily from difficult cases risks surrendering its moral authority. To sit and decide is the truest expression of judicial independence.

IX. The moral centre of justice

Ultimately, the judiciary's strength lies not in abstention but in decision. Unchecked recusals corrode the administration of justice. Each case unheard is an unfulfilled constitutional promise. The duty to decide is not procedural; it is moral. Impartiality must never come at the cost of accountability. When numerous benches decline to hear cases involving allegations against the powerful, the appearance of judicial hesitation itself becomes corrosive. Recusal, when rightly invoked, is an act of humility, but in the Sanjiv Chaturvedi litigation, it has become a virtue less cloistered – one that exposes, rather than shields, the frailty of our institutional conscience.

Brief reasons accompanying a recusal order would go a long way in strengthening the administration of justice. They affirm that conscience guided the decision, and that transparency remains the judiciary's chosen safeguard.

Eight centuries ago, the Magna Carta declared that justice must neither be sold nor delayed. In reclaiming the discipline of decision, the judiciary reaffirms its noblest identity: not as a refuge from controversy, but as the forum where controversy finds resolution.