The danger hiding in Banerjee’s demand: Abhishek Singhvi and SN Mukherjee appearing for Banerjee may have committed gross wrongdoing on the institution by demanding the judge recuse himself. That the judge did recuse himself and that he was graceful doesn’t change the fact that this was an attempt at forum hunting, and it must be critiqued in strongest possible terms.Acquiescing to such pleas of recusal will almost certainly subvert the judiciary’s independence. There will be a flood of requests for recusals, especially in highly sensitive political cases. Hence this practice must be discouraged at all costs. Even public perception of the judiciary will suffer if recusals become frequent.How illustrious judges served without anyone asking they recuse themselves: Justice Sudarshan Reddy regularly appeared for PUCL. So did that stop him from hearing PILs as a judge? No. As a lawyer, Justice VN Khare had appeared for Indira Gandhi in her election disqualification case in Allahabad HC. By Banerjee’s yardstick, he should never have heard any case concerning politics.Justice Krishna Iyer, a minister in Kerala’s first communist government, also rose to Supreme Court judgeship. He famously refused interim relief to Indira Gandhi in the Supreme Court appeal of the Allahabad case. Yet Nani Palkhiwala, appearing for Mrs Gandhi and knowing Justice Iyer’s political career, didn’t ask the judge to recuse himself.Such precedents are crucial. Recusal cannot be sought on the ground of any convenient notion of conflict of interest. Irrespective of how a judge may have acted prior to elevation, it should now be presumed that in holding the highest office he would be discharging his judicial functions fairly.So when must judges recuse? Some guidance stems from the famous recusal dispute in the 2015 NJAC case. The SC bench observed that where the judge’s interest in the case is other than financial, then the disqualification is not automatic but an inquiry is required to ascertain whether the existence of such an interest disqualifies the judge, tested on the principle of “real danger” or “reasonable apprehension” of bias.The US Code of Disqualification of Justice, Judge or Magistrate Judge lays emphasis on a judge “disqualifying himself”. He could do so in any “proceeding” in which his impartiality might “reasonably” be questioned, where he has personal bias or personal knowledge of facts, or where he has appeared as a lawyer in the matter in controversy, or has individual/fiduciary financial interest.Note that this code doesn’t allow for any party to simply ask for recusal based on allegations of bias.Other relevant judicial pronouncements: Justice Manmohan Sarin observed in the RK Anand case: “The path of recusal is very often a convenient and a soft option. This is especially so since a judge really has no vested interest in doing a particular matter. However, the oath of office … enjoins the judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws.”In the celebrated MY Shareef case where a request for recusal was considered a contempt of court, SC had clearly sent out a strong message against recusal of judges.We must nurture the judiciary’s independence: Let’s not undermine our judicial system by casting aspersions on a judge because such an act harms fundamentals of justice administration. After all, a judge’s decision is amenable to challenge. In the Banerjee/Nandigram case, either party could have challenged the decision instead of one side levelling unfounded allegations of association with or appearance for a political party.Recall the words of American jurist John Rutledge: “So long as we may have an independent judiciary, the great interests of the people will be safe.” This tells us what is the strength of a judiciary – its judges.(The writer is a senior advocate at Delhi High Court)
Source: Economic Times
