Why do judges recuse themselves? (GS Paper 2, Judiciary)
Why in news?
- Recently, the former Supreme Court judge Justice M.R. Shah refused to recuse himself from hearing a plea by former Indian Police Service (IPS) officer Sanjiv Bhatt to submit additional evidence to back his Gujarat High Court appeal against his conviction in a 1990 custodial death case.
Details:
- Mr. Bhatt contended that there was a reasonable apprehension of bias as Justice Shah, as a High Court judge, passed strictures against him while hearing his plea linked to the same FIR.
- However, Justice Shah dismissed the plea as an attempt to indulge in ‘bench hunting’.
- Similarly, recently, the Chief Justice of India D.Y Chandrachud rejected an application seeking his recusal from hearing petitions seeking legal recognition of same-sex marriages.
Why do judges recuse?
- Whenever there is a potential conflict of interest, a judge can withdraw from a case to prevent the perception that the judge was biased while deciding a case. This conflict of interest can arise in many ways from holding shares in a litigant company to having a prior or personal association with a party.
- Another common reason is when an appeal is filed in the Supreme Court against a High Court judgment delivered by the concerned judge before his elevation.
- The practice stems from the cardinal principle of due process of law — nemo judex in sua causa, that is, no person shall be a judge in his own case.
- Another principle guiding judicial recusals is ‘justice must not only be done but must also be seen to be done’ propounded in 1924 in Rex v. Sussex Justices by the then Lord Chief Justice of England.
- By taking the oath of office, judges promise to perform their duties, ‘without fear or favour, affection or ill-will’, in accordance with the Third Schedule of the Constitution.
- Furthermore, the Restatement of the Values of Judicial Life adopted by the Supreme Court forbids a judge from deciding a case involving any entity where he holds pecuniary interest unless the concerned parties clarify that they have no objections.
What is the procedure for recusal?
- There are two kinds of recusals, an automatic recusal where a judge himself withdraws from the case, or when a party raises a plea for recusal highlighting the possibility of bias or personal interest of the judge in the case.
- The decision to recuse rests solely on the conscience and discretion of the judge and no party can compel a judge to withdraw from a case. While judges have recused themselves even if they do not see a conflict but only because such apprehension was cast, there are also several instances where judges have refused to withdraw from a case.
- If a judge recuses himself, the case is listed before the Chief Justice for allotment to an alternate Bench. India has no codified rules governing recusals, although several Supreme Court judgments have dealt with the issue.
Do judges have to record a reason for recusal?
- Since there are no statutory rules governing the process, it is often left to the judges themselves to record reasons for recusals. Some judges specify oral reasons in open court while others issue a written order recording the reasons. In other cases, the reasons are speculative.
- More often than not, the reasons behind a recusal are not disclosed leading to a diatribe against judicial transparency especially when mass recusals occur in sensitive cases.
- For instance, in 2022, five judges of the Bombay High Court recused themselves from the Bhima Koregaon case.
- Similarly, the recusal of Supreme Court judge Justice Bela M. Trivedi earlier in 2023 from hearing Bilkis Bano’s plea led to widespread speculation since no reasons were specified. The recusal was largely attributed to Justice Trivedi’s deputation as Law Secretary to the Gujarat government from 2004 to 2006.
- The Delhi High Court recently ruled that no litigant or third party has any right to intervene, comment or enquire regarding a judge’s recusal from a case.
What rules has Supreme Court formulated in the past?
- The Supreme Court has over time outlined various factors to be taken into consideration for deciding the impartiality of a judge.
- In Ranjit Thakur versus Union of India (1987), the SC held that to determine if a judge should recuse, what is relevant is the reasonableness of the apprehension of bias in the mind of the concerned party. “The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him,” the Court ruled.
- The SC in State of West Bengal versus Shivananda Pathak (1998), defined judicial bias as a “preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction”. Thus, it is a condition of mind which renders the judge incapable of impartiality in a particular case, the Court explained.
- Formulating a more definite rule in the Supreme Court Advocates-on-Record Association versus the Union of India (2015), the Court observed that where a judge has a pecuniary interest, no further inquiry is needed as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias. However, other cases require such an inquiry, with the relevant test being the ‘real danger’ test— whether there is a ‘real danger’ of bias, to ensure that the court is thinking in terms of possibility rather than the probability of bias.
- In a controversial recusal ruling, Justice Arun Mishra in the Indore Development Authority versus Manoharlal and Ors (2019), held that a judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench to which a reference is made.
What about foreign jurisdictions?
- Contrasted with India, the U.S. has a well-defined law on recusals — Title 28 of the U.S. Code details the grounds for ‘disqualification of justice, judge, or magistrate judge’. Such rules are also codified in the American Bar Association’s Model Code of Judicial Conduct.
- This specifies three grounds for recusal; financial or corporate interest, a case in which the judge was a material witness or a lawyer, and a relationship to a party. However, on several occasions, judges recuse on their own known as sua sponte recusals.
- The U.K.’s law on judicial recusals evolved through judicial pronouncements. In the landmark case of R versus Gough, the ‘real danger’ test was adopted as the applicable standard based on of which recusal orders need to be passed. The test entailed disqualification solely on substantive and tangible evidence which conclusively highlights the presence of judicial bias and prejudice.
- However, the ‘real danger’ test was subjected to substantial criticism especially since the European Convention of Human Rights requires only the ‘appearance of bias’ to ensure that an onerous burden is not placed on any litigant to prove actual bias.
- Accordingly, a new test was formulated in Lawal v. Northern Spirit Ltd, where the standard laid down was to look at the likelihood of bias from the perspective of a fair-minded and reasonable observer.
All in one policy plan to spread insurance in India
(GS Paper 3, Economy)
Why in news?
- In an ambitious bid to expand the poor insurance penetration in the country, the Insurance Regulatory and Development Authority (IRDA) is devising a new affordable bundled product to give citizens protection against multiple risks, and seeking to expedite claim settlements by linking death registries onto a common industry platform.
Approach:
- These initiatives are part of a broader overhaul, including legislative amendments to attract more investments through differentiated licences for niche players similar to the banking sector, with an eye on making insurance “available, affordable and accessible” to citizens with a ‘Gram Sabha- to district- to State-level’ approach.
- These changes could double the number of jobs in the sector to 1.2 crore.
Key Highlights:
- IRDA is striving to create an “UPI-like moment” in insurance through a plan worked out with general and life insurance firms termed as “Bima Trinity”.
- A new Bima Sugam platform will integrate insurers and distributors on to one platform to make it a one-stop shop for customers, who at a later stage can pursue service requests and settlement of claims through the same portal.
- IRDA is simultaneously developing a possible lynchpin product Bima Vistar that will be a bundled risk cover for life, health, property and casualties or accidents, with defined benefits for each risk that can be paid out faster than usual without the need for surveyors.
- The third part of the trinity envisaged by the IRDA entails a women-centric workforce of Bima Vaahaks (carriers) in each Gram Sabha that will meet the women heads of each household to convince them that a composite insurance product like Bima Vistar can “come in handy if there is any distress”.
Implementation:
- To meet the target of providing insurance cover for all by 2047, the IRDA is also looking to form State-level insurance committees similar to the ones prevalent in the banking sector, and rope in State governments to formulate district-level plans.
- Separately, the IRDA has proposed amendments to the insurance laws that the government may take up soon, which will allow differentiated capital requirements for niche insurers so as to attract more investments, and permit players to add value-added services to the policies they sell.
- The amendments will also enable the entry of new players in the form of micro, regional, small, captive players, specialised players, and even composite licences.
