RECUSAL OF JUDGE FROM HEARING AND FORUM SHOPPING

The fundamental principle of justice is that the judge should be impartial, independent and fair. This principle is reflected in Latin phrase “Nemo judex in causa sua” which means that no one should be a judge in his own cause. Another important principle is that justice should not only be done should seem to be done.

If a situation arises where there is a conflict of interest and possibility of bias, a judge may recuse from hearing. In India, it is ultimately a discretion of judge whether to recuse or not to recuse. There is no law regulating the recusal of a judge from hearing.

Law of recusal has been extensively discussed in the matter of Supreme Court Advocate Record Association vs Union of India ( Recusal Matter) (2016) 5 SCC 808.  Justice Chelameshwar observed that when there is pecuniary bias, a judge is automatically disqualified from hearing a case. In other cases bias has to be tested on “real danger” or “reasonable apprehension” grounds.

There can be several reasons depending upon facts and circumstances of the case for recusal.

• A judge may recuse on account of any financial/pecuniary interest in the matter
• A judge may recuse on account of prior involvement in a case as lawyer or in any other manner
• A judge may recuse if he/she had personal relations with one of the parties.
• In a judge is of the opinion he is not good health, he may also recuse

Justice U U  Lalit has recused from 2G spectrum case as he had represented one of the accused in the past as  a lawyer.

Justice U U Lalit has also recused from Ayodhya case as he had appeared for a related party.

Justice  Ranjan Gogoi has recused from a contempt case filed by Prashant Bhushan against chief justice to ensure impartiality.

Justice R. K Agrawal has recused himself in Tata Sons case as his family members  had certain connections with Tata Sons.

RECUSAL AND FORUM SHOPPING

There are several unscrupulous litigants who try to use tool of “recusal” for forum shopping. If it seems to an unscrupulous  litigant that he will not get favourable order from a bench, he may file frivolous recusal application before the Court.  A  Judge is under duty to decide a matter without fear or favour.  A Judge must not recuse if the intent for filing any application for recusal is avoidance of adverse order. Recusal can be only allowed on the basis of likelihood of bias in determination of a case.

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