The judiciary is witnessing a spike in judges choosing not to hear cases without giving any reasons. This month alone, three judges of the Supreme Court opted out of cases before them. But no one knows why.
In some of these cases, the judges had heard the matters for several months.
On March 10, justice V Gopala Gowda recused himself from hearing the CBI’s challenge to a 2010 Allahabad high court verdict dropping criminal conspiracy charges against BJP leaders including LK Advani and others in the Babri Masjid demolition case. In February, he had himself given this date to hear the matter.
This happened two days after Justice J Chelameswar opted out of a case pertaining to Bengaluru blast accused Abdul Nazir Maudany. In the open court, the judge – who had heard the matter for almost two years – simply adjourned the matter but the written order said it would be listed before another bench.
In recent years, there have been many instances from high courts where judges referred cases to the chief justice for sending them to another bench.
Should judges disclose the reasons for recusal? Do citizens have a right to know why a particular judge has opted out of a case?
“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… 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 Joseph said in his verdict on the National Judicial Appointments Commission.
“Reasons for recusal must be assigned, whether they are personal or public,” says senior advocate Rajiv Dhavan.
“In a large number of cases, judges recuse themselves because either they have dealt with it as a judge or as an advocate. The reasons are often explicit without being put to writing. The conflict is recognised by the judge and the lawyer in the case. But in all other cases they must disclose the reasons,” says Dhavan.
Former secretary of the Supreme Court bar association Ayshwaria Bhatti says, “Now recusals have become quite mysterious. Nobody knows whether it’s a recusal order. Recusal requests were also never made the way they are being made these days. Judges should disclose reasons.”