When Should A Judge Step Aside? India Has No Answer !

On April 20, 2026, Justice Swarana Kanta Sharma of the Delhi High Court rejected a recusal plea filed by the accused in the liquor policy case. The grounds cited were that the judge's children serve as central government panel counsel, creating an apprehension of bias. Justice Sharma rejected the application, observing that “a politician cannot be permitted to judge judicial competence” and that “recusal has to stem from law, and not from narrative.”

In July 2024, in a case arising from the same liquor policy investigation, Supreme Court Justice Sanjay Kumar recused himself from hearing a bail plea without offering any reasons.

Two judges. The same set of facts. Opposite decisions. Both legally valid.

This is not a contradiction. It is a feature of India's recusal framework, or more precisely, the absence of one. There are no codified rules governing when a judge should step aside, no statutory obligation to record reasons for recusal or refusal, and no mechanism for review when a recusal decision is challenged. The entire system rests on a single phrase: the conscience of the judge. In a judiciary of over 800 High Court judges and 34 Supreme Court justices, conscience is doing a lot of unsupervised work.

In 2019, a five-judge Constitution bench was constituted to re-examine a ruling on the Land Acquisition Act. The bench was headed by Justice Arun Mishra, who had authored the very ruling under review. Multiple senior advocates, including Shyam Divan, requested his recusal on grounds that predisposition to a particular view raises reasonable doubt of bias. Justice Mishra refused, writing a lengthy order asserting that holding a legal opinion does not disqualify a judge from being impartial. Legal scholars argued that this shifted the test for judicial bias from the litigant's reasonable apprehension to the judge's own self-assessment, a departure from the standard followed across common law jurisdictions.

The same year, Chief Justice Ranjan Gogoi refused to recuse from hearing cases where his impartiality was questioned. When sexual harassment allegations were raised by a former Supreme Court staffer, he sat on a special bench convened to address them. The in-house panel subsequently found no substance in the allegations. No external oversight was involved at any stage.

In contrast, five Supreme Court judges recused in quick succession from hearing the bail plea of activist Gautam Navlakha in 2019, none offering reasons. In the Babri Masjid demolition appeals, Justice Gopala Gowda recused without citing grounds. In cases involving the Adani group, then Chief Justice J.S. Khehar recused from hearing a petition, again without explanation.

The pattern is consistent in its inconsistency. Some judges recuse at the faintest suggestion of a connection. Others refuse under intense public pressure. Some write elaborate orders defending their impartiality. Others step aside silently. The public is left to guess whether a recusal reflects genuine conflict of interest or forum shopping by litigants, and whether a refusal reflects judicial courage or institutional stubbornness.

The legal framework offers almost no guidance. The Supreme Court's own Restatement of Values of Judicial Life, adopted in 1997, states that a judge should not hear a matter in which a member of his family is concerned. But “concerned” is undefined. Does it cover a child who is a government panel counsel? A spouse who practices before the same court? The Restatement does not say. And since it is a voluntary ethical code with no enforcement mechanism, it does not need to.

The Judges (Inquiry) Act of 1968, which governs removal proceedings, does not address recusal at all. The Code of Civil Procedure contains a provision allowing a party to raise an objection if a judge has a pecuniary or personal interest, but this applies to subordinate courts, not the High Courts or the Supreme Court.

What India has, then, is a system where the highest courts in the land operate on an honour code that is neither written, nor enforceable, nor consistently applied.

Justice Sharma's order contains a line worth pausing on: “Recusal has to stem from law, and not from narrative.” She is right. But Indian law has almost nothing to say about recusal. There is no statute, no binding precedent, and no judicial practice direction that tells a judge when apprehension of bias crosses the threshold from a litigant's discomfort to a legitimate ground for stepping aside. In the absence of such standards, every recusal decision becomes an act of individual discretion, and every refusal becomes a test of public trust that the judge is forced to pass alone.

The solution is not to make recusal automatic whenever a litigant demands it. That would hand a veto to every accused person who wants to pick their judge. As the Kerala High Court observed, a judge who succumbs to wild allegations of bias sets a bad precedent for judicial independence. Nor is the answer to make recusal impossible. The solution is a middle ground that currently does not exist in Indian law.

Three reforms would bring clarity without compromising independence.

First, the Supreme Court should issue a binding practice direction specifying categories of relationships and interests that require mandatory recusal: direct financial interest, close family members appearing as counsel in the same court, prior involvement in the same matter as a lawyer, and personal relationships with parties. This list does not need to be exhaustive. It needs to be a starting point.

Second, every recusal decision, whether to step aside or to refuse, should be accompanied by a written order recording reasons. The current practice, where judges recuse silently or refuse without explanation, deprives the public of any basis for evaluating the decision. A recent analysis of recusal jurisprudence noted that modern practice too often substitutes brevity for transparency. Opacity is not a safeguard of judicial independence. It is a threat to it.

Third, when a recusal plea is rejected, there should be a mechanism for the litigant to raise the issue before the Chief Justice, who can either endorse the decision or reassign the matter. This already happens informally. Formalising it would add institutional review without creating a right for litigants to choose their judges.

None of these reforms require a constitutional amendment. They require a judicial practice direction or, at most, a statutory amendment to the Judges (Inquiry) Act. The Supreme Court has the authority to issue such a direction tomorrow.

India deserves an answer to a simple question: when should a judge step aside? Until the judiciary provides one, every recusal dispute will be fought in the court of public opinion rather than in a framework of law. That is not good for judges, for litigants, or for the institution.

Author Bhavya Razshree is an Advocate practicing at Delhi High Court & Aditya Ashok is an IIM Mumbai Post Graduate. Views are personal.