Do citizens have a right to know why a judge has opted out of a case?
Two judges have recused themselves from hearing the AAP government’s petition against the Centre on administrative control over Delhi in as many days.
A day after Justice JS Khehar distanced himself from the case; Justice L Nageshwar Rao recused himself on Tuesday.
But no one knows why.
In recent times, there has been a spike in the number of cases judges refusing to hear for unknown reasons.
In March alone, three judges of the Supreme Court opted out of cases without disclosing the reasons for their recusal. 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 the 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 had happened two days after Justice J Chelameswar opted out of the case pertaining to Bangalore 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 the cases to the chief justice for sending them to another bench, mostly without disclosing the reasons for their recusal.
Should judges disclose the reasons for recusal? Do citizens have a right to know why a particular judge has opted out of a case?
Justice Kurian Joseph answered it in the affirmative. “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 Joseph said in his verdict on 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.
“People have a right to know why judges recuse themselves from cases. The need for people to know increases when judges – one after the other offer recusal, especially in matters of public and constitutional significance.”
Instances of recusal of SC judges
July 4, 2016: Justice JS Khehar recuses from hearing AAP govt petition against Centre on administrative control over Delhi.
July 5, 2016: Another judge, Justice L Nagesjwar Rao, says he does not want to hear AAP government’s petition on same subject.
March 8, 2016: Justice J Chelameswar recuses from a case on Bangalore blasts accused Abdul Nazir Maudany.
March 9, 2016: Justice AR Dave’s bench says it is unable to hear activist Teesta Setalvad’s anticipatory bail plea and referred it to CJI for listing it before another bench.
March 10, 2016: Justice VG Gowda recuses from hearing CBI’s plea challenging May 2010 Allahabad HC verdict dropping criminal conspiracy charge against BJP leaders LK Advani and others in Babri case.
April 28, 2011: Bench of justices DK Jain and HL Dattu recuses from hearing then Sikkim HC Chief Justice PD Dinakaran’s petition seeking a stay on Rajya Sabha-appointed inquiry panel against him.
March 2, 2012: Bench of Justices HL Dattu and CK Prasad choses not to hear a petition challenging validity of the USD 8.5 million Cairn Energy-Vedanta deal.
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