ABSTRACT
Judicial recusal, crucial for upholding judicial impartiality as well as public trust, is an infrequently implemented and mysterious procedure in India’s Supreme Court. In contrast to other legal systems like the U.S. and U.K., which have a codified system (e.g., 28 U.S.C. § 455) and open methods of transparency, India employs discretionary, unreasoned recusals for the sake of judicial conscience—giving rise to scandal such as Justice Arun Mishra’s denial to recuse in the Land Acquisition Case (2019) and the Justice P.D. Dinakaran debacle. This essay analyses India’s recusal system in a doctrinal analysis of constitutional provisions (Articles 14, 21) and milestone judgments (Shivananda Pathak, Ranjit Thakur) reinforced with a comparative insight into best international practices. It flags structural defects: arbitrary discretion, non-disclosure of reasons, and lack of enforceable ethics norms. Recommended reforms are legislative codification of the grounds of recusal, an in-house judiciary committee on ethics, and mandatory public justification of recusals, based on the *Bangalore Principles of Judicial Conduct. Through balancing judges’ autonomy and accountability, the reforms seek to revive public confidence in India’s judiciary while promoting constitutional values of impartiality and transparency.
Keywords: Judicial recusal, Supreme Court of India, judicial ethics, transparency, comparative law, Bangalore Principles.
INTRODUCTION
An independent and impartial judiciary is the backbone of a constitutional democracy and the pillar of the rule of law protection. It is not just structural independence but also functional independence—freedom from outside control or prejudice. Perception of impartiality is important because public trust gives legitimacy to judicial judgments. As held in R v. Sussex Justices, ex parte McCarthy [(1924) 1 KB 256], “Not only must Justice be done; it must also be seen to be done.” This motto is the ground rule of the rule of recusal, where judges are under an obligation to recuse themselves when there’s a conflict of interest or even an appearance of such conflict.
Indian judicial recusal does not receive constitutional recognition but emerges under common law and precedent, based on natural justice principles and Articles 14 and 21, ensuring equality and a fair trial. But even the process is obscure and unequal. Unlike in countries such as the UK and US, where recusals are usually on grounds reasoned out, Indian judges will recuse but without reasons, raising fears about a lack of transparency and public trust.
Judgments like Campaign for Judicial Accountability and Reforms v. Union of India [(2018) 1 SCC 196], Justice C.S. Karnan v. Supreme Court [(2017) 7 SCC 1], and the 2019 Land Acquisition Bench scandal against Justice Arun Mishra have brought these to the limelight. Recusal has been held by the Supreme Court to be a matter of conscience (State of West Bengal v. Shivananda Pathak [(1998) 5 SCC 513]), but this approach subjective in nature, is bound to be arbitrary and undermines judicial integrity.
In politically sensitive or high-stakes cases, this absence of codified standards further invites the inevitable forum shopping or charge of judge shopping. This paper critically examines India’s recusal jurisprudence, ethical fallacies, and comparative lessons, condemning the extent to which the existing practices meet the democratic ideals of transparency and accountability.
RESEARCH METHODOLOGY
The study applies a doctrinal and comparative legal research strategy to explore recusal by Indian judges. The doctrinal analysis is based on the examination of Supreme Court cases and Constitutional provisions, i.e., Articles 14 and 21, in search of the grounds for recusal under the law. The comparative component compares the recusal paradigms of the U.S. (28 U.S.C. § 455) and the U.K. in search of global best practices to spearhead change in India.
Legislation and common law, primary sources, and secondary sources of commentaries and reports form the basis of this research. It deals with central issues—judicial discretion, lack of transparency, and need for accountability—while acknowledging the lack of empirical information and codified norms as necessary deficiencies.
The research concludes by suggesting reforms such as codified recusal procedures, ethics committees, and compulsory disclosure of grounds for recusal. These reforms are meant to protect judicial independence while being open and harmonizing the practices of India with international standards.
LITERATURE REVIEW
Judicial recusal based on grounds of natural justice and fairness is essential for an unbiased judiciary, but is still a discretionary, non-statutory procedure in India. Even though not specifically referred to in the Constitution, its moral grounds are Articles 14 and 21. Writers such as Dr. B. N. Singh and Prof. P. P. S. Verma identify that the lack of codified criteria undermines public trust and induces variation in application.
On the international front, comparative law studies have the unique advantage of examining the more structured systems of recusal primarily in the United States of America and the United Kingdom. For example, in the USA, 28 U.S.C. § 455 provides a list of explicit grounds for recusal, including the chance of being disqualified (or requested to be disqualified) from a proceeding based on the appearance of bias (personal prejudice) or financial interest in the outcome of a case. Statutes such as the U.S. federal recusal provisions could be easily adapted to suit the Indian legal system and add presence to the lack of codified recusal framework available to the Indian Federal judiciary, state judiciaries, and quasi-judicial bodies and tribunals in India, according to many Indian legal scholars and practitioners, including Justice A. K. Patnaik, R. K. Sinha.
Indian literature on recusal from the courts draws from landmark cases mainly from Ranjit Thakur v. Union of India and State of West Bengal v. Shivananda Pathak, which are useful in highlighting an inherent conflict existing as an individual judge as opposed to the institution. Legal recusal is personal as it brings into account personal beliefs about presumptions and values, which is sometimes subjective but arguably influences by ethical consideration, and criticized for its opacity as in high-profile matters like Justice C.S. Karnan v. Hon’ble Supreme Court of India, or how Justice Arun Mishra recused himself from a matter before the Land Acquisition Bench.
Scholar writers such as S.K. Verma and N.L. Gupta has suggested introducing a regime of recusal in India, as it exists in the US and UK, for purposes of transparency, consistency, and accountability of judicial recusal. They believe that an institutional approach would provide official sanction to the process of recusal, making the judges accountable without compromising their neutrality and impartiality. Reform proposals require public mandatory disclosure of grounds for recusal, which would exclude speculative public conjecture and help create confidence in the judiciary. These proposals are following international best practice, including the Bangalore Principles of Judicial Conduct, which allow for transparency and accountability in judicial decision-making.
CONCEPTUAL COMMENTARY
Judicial recusal is the voluntary or obligatory recusal of a judge to hear a case because of a risk of prejudice, conflict of interest, or pre-judgment. Judicial recusal promotes impartial courts and enforces the canon of “nemo judex in causa Sua,” an international principle of due process, which evokes public confidence in judicial judgments.
Recusal not only represents individual honour but is also an institutional integrity concern. The judiciary, as guardians of constitutional rights, demands a level of independence from judges. Judges must be independent and impartial, and must also appear to be independent and impartial because appearance is a foundation block to trust in judges who decide sentences. As Lord Hewart C.J. concluded with the much-cited dictum in R v. Sussex Justices, ex parte McCarthy: ‘Justice ought to not only be done but also to be manifestly and undoubtedly seen to be done.’ This phrase subsequently took hold as a cornerstone of the judicial ethics lexicon.
Recusal of judges is a basic pillar of Indian judicial ethics, since judges at times have difficulties maintaining that they are only in charge of prejudice in the process. The process of recusal ought to be founded on objective principles of law and not on discretionary selection.
Though judicial recusal finds no explicit provision within the Indian Constitution, its strength is arguably found in Articles 14 and 21, which enumerate equality before law and the right of life and liberty. These rights were given meaning by the courts as comprising the right to a fair hearing, which subsequently came to be regarded as a fundamental feature of the Constitution. In Ranjit Thakur v. Union of India, the Supreme Court of India provided an excellent description of the contours of recusal in judging:
“The test of whether a person is biased or not is the reasonable apprehension of the bias in the mind of the party. The correct approach for the judge is not to look in his mind and ask himself whether he is biased or not, honestly be it, but to look at the mind of the person who is before him.”
The Court highlighted that it may be reasonable for a party to have a reasonable apprehension of bias, even if there is no bias, which provides some grounds for the judge to recuse himself. The Court stated it would rely on the well-established reasonable apprehension guidelines, articulated in constitutional law, thus establishing a direct correlation of recusal to the Charter rights, contained in Articles 14 and 21.
The principle of impartiality is again reinforced in Manoj Narula v. Union of India, where the Court discussed constitutional morality and the imperative to uphold institutional respect. In a similar vein, in State of West Bengal v. Shivananda Pathak, the Supreme Court also stated that recusal was a matter of judicial conscience, and judges should make decisions based on maintaining the dignity of their institution.
The Restatement of Values of Judicial Life (1997), while not legally framed, sets ethical standards that urge judges to shy away from situations that would likely create the appearance of partiality, like family cases, good friends, or financial interests. So also everywhere else in the world, such as Canon 3C (1) of the U.S. Code of Judicial Conduct, which necessitates recusal when impartiality can fairly be questioned. While there is no explicit law of recusal in India, it relies on constitutional ideals and judicial conscience to provide a basis for the actual as well as the seeming impartiality of judges.
JUDICIAL RECUSAL IN INDIA
A. Early Cases
Judicial recusal jurisprudence in India derives from the notion of natural justice and the right to a fair hearing, as contained in Article 21 of the Constitution. The Supreme Court of India decision in Maneka Gandhi v. Union of India was an unexpected move into the requirements of the Constitution, it was a case in which the Court had to determine what is meant by “procedure established by law” in terms of fairness, justice, and reasonableness. This case opened the door to procedural due process and recognized natural justice principles in the adjudication process, for example, the principles also included the bias doctrine.
In the case of Maneka Gandhi, while the substantive focus of this case was the impounding of a passport with a hearing, the importance of substantive fairness and proper procedure has a continuing impact in several areas, including judicial ethics. The Court made it clear what the executive action, or judges in this case, are required to do when contemplating depriving a claimant’s life or liberty—be fair, and procedural fairness indicates the expectation for a judge to recuse where the appearance of impartiality is, or appears to be, in issue.
This was a landmark event in public law by linking natural justice to constitutional obligations and has continued to guide subsequent benchmarks for courts’ judicial conduct, and even judicial disqualifications.
B. State of West Bengal v. Shivananda Pathak.
In State of West Bengal v. The Shivananda Pathak, the Supreme Court was addressing the direct ethical question of judicial disqualification or recusal. Justice A.P. Misra observed on behalf of the Court, [t]hat recusal is a matter of subjective/personal conscientiousness of the judge, and is to be left to each judge’s satisfaction and discretion – except where there is an explicit indicator or requirement in statute, or a constitutional requirement.
The case ruled that a judge need not recuse merely because a party has concern, as it could allow bench hunting and undermine judicial independence. Excluding real bias is crucial, but the Court reiterated that even a reasonable apprehension of bias should be eschewed, under the doctrine of fairness under Articles 14 and 21.
Shivananda Pathak acknowledges this reasoning and outlines the tension between personal discretion and the institutional aspect, and notes the importance of having clear ethical limits, and further, ensuring that the institution protects judicial independence.
C. Justice P.D. Dinakaran Controversy
The case of Justice P.D. Dinakaran (former Chief Justice of the Karnataka High Court) became infamous, and some may say, a landmark case in capturing the ethics and accountability conversation concerning judicial recusals. Justice Dinakaran was seriously accused of corruption, land-grabbing, and judicial misconduct. Faced with public scrutiny and major judicial disclosure, it was not evident why he continued to hear the cases before him, even if Justice Dinakaran was perceived to be questionable.
Despite representations, there was no enforceable mechanism to compel recusal or even to suspend functions while being investigated, and this contributed to a lack of credibility. Then, once there was clarity that impeachment under Article 124(4) was available, the lack of a framework for dealing with such situations illustrated the moral & procedural deficits that existed.
This situation exhibited the necessity for these regulated rules of ethics and institutional safeguards for internal misconduct allegations, especially when the judge will not recuse. It exhibited that realizing that there was a problem, or being subjective in one’s view, followed by the mere guidance of conscience for recusal, is simply insufficient when the integrity of the institution is under scrutiny, and consequently, public confidence in the justice system is diminished.
In conclusion, the judicial recusal in India is shaped through a convergence of statutory values, the interpretation of various judicial precedents, and media attention on the various controversies involved. The first few cases underlined the underlying constitutional values of impartiality and fairness that should be present in judges, but the subsequent journey illustrates the institutional problems for which the Indian judiciary needs to manage the requisite standards of conduct and illustrates the need for a formal recusal regime for superior courts.
LIMITED TRANSPARENCY
A. Non-disclosure of Reasons
One of the particular weaknesses of the Indian judicial recusal procedure is that no requirement to give reasons is provided by statute. Recusals are frequently suo motu unreasoned, which compromises the culture of reason-giving and invites speculation about judicial motives. This transparency is starkly inconsistent with recent attempts at greater transparency elsewhere, for example, in judicial appointments, and serves to emphasize that criticism should be visited upon recusal practice.
In the case of Supreme Court Advocates-on-Record Ass’n v. Union of India, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reinstated the collegium method of appointment of judges. However, the Court also noted the necessity for transparency in respect of selecting and appointing judges. This awareness indicates an institutional acceptance of scrutiny into this aspect of a judicial function whilst maintaining secrecy in another, no less significant, aspect of judicial conduct.
The principle of open justice under Articles 14 and 21 of the Constitution demands that judges should be reasonably justifiable in taking steps prejudicing litigants’ rights. Unexplained recusals are contrary to arbitrariness and contaminate procedural fairness and institutional integrity. The doctrine of legitimate expectation adds to the requirements of openness, guaranteeing public confidence in judicial hearings.
B. Discretion and Voluntariness
The existing structure for recusal affords complete free will for the applicable judge. There are no statutes, no constitutional provisions, and no appellate case law that unequivocally dictate that a judge must recuse from, or provide reasons for declining to recuse, a matter. Judges also make these choices with no statutory or constitutional fetters because those fetters can constrain the independence of judges, and so independence — properly understood — following S.P. Gupta v. Union of India — represents constitutional fidelity! Even more disturbing is that what in the end protects judicial independence — the absence of fetters — can devolve into unreviewable solipsism.
The latitude of discretion concerning non-recusal necessarily implies there is no connection between litigants as related to any potential rights of litigants where judges fail to recuse in circumstances of reasonable apprehension of personal bias. Unlike the United States, with legal standards from 28 U.S.C. § 455, in codified formats, and thus enforceable, judges in India have no duty to provide informed reasons as to the matters they want to continue to engage with, nor do they have any objective criterion related to observable bias simplicitor let alone threshold norms.
In Indore Development Authority v. Manoharlal, when weighing up the more worrying circumstance of a bench being perceived as biased, I find it useful to reflect on the refusal of Justice Arun Mishra to voluntarily recuse himself, in what can be described in a significant amount of controversy surrounding the past decisions had reasonable suggestions for perceived bias, and importantly a recusal framework was in focus again. Even scholars and former judges have said this whole recusal saga may well have been avoided, had Justice Mishra at least been transparent in some acts of disclosure, or at the very least had rationales with significance concerning the duty to be accountable to institutions while still keeping Judicial independence.
If we were to create an overarching code of practice (similar to a Code of Conduct for Judges in the United Kingdom or the revised/unified Bangalore Principles), it is possible to find a way to balance the level of its discretion and transparency in a manner that maintains public confidence and trust in judicial recusal as practice that can have uniqueness, consistency, fairness, transparency and accountability.
PROSPECTS FOR INSTITUTIONAL REFORM
A. Codified Structure
Judicial recusal in India is largely dependent on discretion and has no codified or legislative structure. Other jurisdictions (including the United States) do have a statutory structure and recusal process. In the United States, for example, this is codified at 28 U.S.C. § 455, which requires recusal if the judge’s impartiality “might reasonably be questioned”; available recusal grounds under § 455 include the judge’s own personal bias or financial interest. India should consider a statutory and codified arrangement or structure that describes the scope, grounds, and procedures for judicial recusal. Legislation would not only bring consistency and objectivity to the determination of recusal and lower the chance for arbitrary requirements, but also support the equality before the law enshrined in Article 14 of the Constitution and due process enshrined in Article 21. Furthermore, legislation and codification could assist in curbing situations where the non-recusal by a judge under a reasonable apprehension of bias could raise serious due process issues – similar to the circumstances in State of Punjab v. Davinder Pal Singh Bhullar – where a high-profile capital case generated criticism of the judge after receiving information about any shapes in the judge’s view regarding recusal from the cause.
B. Ethics Committee in the Judiciary
Another pertinent reform could be an internal judicial ethics committee—comprised of senior justices of the Supreme and High Courts—that could act like an institutional advisory body to the judges on ethical dilemmas, including recusals. This would allow judges to establish a standard set of ethical actions and practices while ensuring recusals are not made under duress from outside pressure, nor are they arbitrary omissions or omissions detected through the ethical fault examination process. While it would uphold the independent functional view of the judiciary and representatives should act within the individual conscience, it would also articulate the hope of ethical accountability shaped from defined integrity.
Both the Judicial Conduct Investigations Office (UK) and the Committee on Codes of Conduct, Judicial Conference of the United States, could be utilized as templates for jurisdictions that do not follow these models or as illustrations. In India, although the In-House Procedure (1997) is intended to address judicial misconduct, the fixed public/private engagements, transparency, lack of enforceability, and awareness are overlooked or not considered important. Bringing oversight to a specified ethics committee would create a moral rationale around self-responsibility to wilfully and intentionally act on someone’s ethical behaviour, creating a distinction between self-conscience accountability and personal responsibility.
C. Public transparency and accountability
Recusal decisions must have succinct, written, and public reasons, except in unusual situations regarding confidentiality or national security. This would support the constitutional principle of open justice, which requires that all judicial action that affects rights and liberties be open and capable of review. In Swapnil Tripathi v. Supreme Court of India, the Supreme Court said public access to court proceedings was part of the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, strengthening the public’s right to know judicial behaviour.
Public disclosure of recusal decisions, including reasoning, would deter tactical recusal and allow for greater institutional trustworthiness. Further, it is not at odds with best practices around the world, including Canon 2.5 of the Bangalore Principles of Judicial Conduct. Canon 2.5 requires that judges disqualify themselves when the judge thinks a reasonable person could question their impartiality and be transparent about the disqualification.
Therefore, the absence of a codified system of recusal has resulted in arbitrariness and prejudiced public confidence. Codifying the recusal standards, allowing internal oversight, and allowing transparency with written reasons is crucial to maintain fairness and judicial autonomy.
CONCLUSION
The chronic recusal controversies in the Supreme Court of India undermine the fine line between institutional responsibility and the independence of the judiciary. Although judicial independence is a cornerstone constitutional tenet, reiterated in Kesavananda Bharati v. State of Kerala, it cannot be used as a bulwark to insulate the judiciary from accountability. As again reminded in Ranjit Thakur v. Union of India, not only should justice be done, but it should also be seen to be done—not merely substantively but procedurally too.
To restore public trust, India must have a transparent, codified regime of judicial recusal. The current use of personal conscience creates inconsistency and speculation, causing public trust to be drained. Articles 14 and 21 of the Constitution require the judiciary to maintain equality and justice, including openness in the conduct of judges.
Institutional changes, such as clear standards of recusal, in-house ethics committees, and disclosure requirements of reasons, would bring Indian practice in line with international best practice, such as the Bangalore Principles and U.S. standards under 28 U.S.C. § 455. As Lord Denning himself once remarked, “Justice must be rooted in confidence”—a reminder that ethical restraint is not only vital to judicial conscience but also to the integrity and legitimacy of the judiciary at every level.
NAME: Shristy kumari
COLLEGE: Kirit P. Mehta School of Law, NMIMS, Mumbai
COURSE: B.A. LL.B. (Hons.)
EMAIL ID.: kumarishristy8271@gmail.com