Context:

Two Supreme Court judges hailing from Kolkata withdrew themselves from two politically sensitive cases involving the state government.

The Doctrine of Recusal: The Concept

• of Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
• It is a basic precept that no one should be a judge in his or her own case.
• Courts must keep the promise of dispensing fair and impartial justice and must decide controversies without bias.

Can bring the decision to recuse

• The decision to recuse generally comes from the judge herself.
• However, in some circumstances, lawyers or even parties involved in the case bring it up before the judge.
• In case, if a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
  • It is to be noted that there are no formal rules governing recusals.

Recusal in India

• Absence of the statute:

  • In India, there is no statute laying down the minimum procedure which judges must follow in order to ensure impartiality.
  • However, courts have always insisted that judges and other adjudicatory authorities must ensure that they have to ensure principles of impartiality.

• Inspired From Natural Justice

• The principles of Natural Justice have developed with the growth of civilization and the content thereof is often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community.
• It implies fairness, reasonableness, equity, and equality.

• Constitutional ethos:

  • Though the Indian constitution does not use the expression of recusal, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.
  • The duty to act fairly and impartially is ingrained in Articles 14 and 21 of the constitution. 
  • Indian courts have nourished these values with reference to administrative decision-making and emphasized the test of ‘real likelihood of bias.