Recent recusals in Supreme Court, HC, tribunal send mixed signals on transparency

Recent recusals in a top tribunal, a High Court, and finally, the Supreme Court have sent confusing signals about whether judges must reveal why they choose to walk out of cases.

At the country’s top court, for instance, August 26 witnessed the inexplicable and sudden recusal of Justice M.M. Sundresh from hearing a bail plea filed by activist and advocate Surendra Pundalik Gadling in the Surjagarh iron ore mine arson case of 2016. The bail case had been with Justice Sundresh’s Bench since July 9, 2024. For well over a year, the case had seen a series of 13 adjournments till the day of the judge’s recusal, on August 26. The adjournments were largely due to the government seeking more time to file a counter-affidavit.

Following the recusal, the case has been moved to a Bench headed by Justice J.K. Maheshwari. It came up for hearing on September 3, but was adjourned to September 17. Mr. Gadling has been behind bars since 2018. The bail plea in the Supreme Court dates back to October 2023.

The August 26 recusal order by Justice Sundresh’s Bench does not reveal the reason why the judge chose to suddenly recuse after so many adjournments since July 2024. The one-line order blandly read: “Subject to orders of the Honourable The Chief Justice, post before another Bench, in which one of us, Justice MM Sundresh, is not a member.”

Exceptional transparency

The impenetrable veil thrown over judicial recusals was partially lifted recently when a judicial member of the National Company Law Appellate Tribunal (NCLAT), Justice Sharad Kumar Sharma, recorded in an order that he was recusing himself from a corporate insolvency appeal as a “revered member of the higher judiciary” had approached him for a favourable order for one of the parties.

Again, a Madhya Pradesh High Court judge, Justice Vishal Mishra, chose transparency by recording in his recusal order that a Bharatiya Janata Party (BJP) MLA had “attempted to call him” about an illegal mining case.

However, these two instances, that of the NCLAT member and the High Court judge, are exceptions. The style of Justice Sundresh’s recusal order, non-explanatory and brief, is the general rule.

No rules for recusals

There are no formal rules governing recusals by judges.

Judges who choose to opt out of a case can do so without giving any reason. The case, such as Mr. Gadling’s bail plea, consequently suffers further delay, rendering justice ineffective. The recusal of judges from hearing cases, especially those which are high-profile or sensitive, has raised uncomfortable questions both in legal circles and in the public sphere.

Justice Kurian Joseph (now retired), in his separate opinion in the National Judicial Appointments Commission (NJAC) judgment, had emphasised the need to frame specific rules for judicial recusal.

“It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case,” Justice Kurian had observed.

Removing perceptions of bias

He had argued that giving reasons for recusing oneself served the legal principle that ‘justice must not only be done, but be seen to be done’. Transparency serves the cause of impartiality in the judicial process.

In the case of S. Parthasarathi v. State of Andhra Pradesh, Justice K.M. Mathew had observed that a judge must recuse himself if right-minded persons entertain a feeling that there is any likelihood of bias on his part. The mere possibility of such a feeling was not enough; there must exist circumstances where a reasonable and fair-minded person would think it probable or likely that the judge would be prejudiced against a litigant.

“Being an institution whose hallmark is transparency, it is only proper that the judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well- meaning public may not entertain any misunderstanding that the recusal was for altogether irrelevant reasons… Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill- will,” Justice Kurian had observed in the NJAC ruling.