The doctrine of judicial recusal dictates that a Judge must recuse himself from any proceedings if it is not appropriate for him to hear the case listed before him. Recusal is when a judge voluntarily chooses not to hear a case. Judicial disqualification, also referred to as recusal, refers to the act of abstaining by a Judge from participating in a legal proceeding due to his conflict of interest. A Judge is disqualified from hearing a matter where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the case before him. A Judge must be free from disabling conflicts of interest making the proceedings fair and leaving no room to be questioned. A judge must recuse himself in any proceeding in which his impartiality might reasonably be questioned. The Hon. Supreme Court in the Judgment of Justice P. D. Dinakaran v/s Hon’ble Judges of Inquiry Committee & ors reported in AIR 2011 SC 3711 noted as under: “…In the words of Lord Denning MR. justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: The judge was biased (Emphasis supplied) 35. In India, the Courts have, by and large, applied the real likelihood test for deciding whether a particular decision of the judicial or quasi judicial body is vitiated due to bias. In Manak Lal v. Dr. Prem Chand Singhvi (supra), it was observed: Every member of a tribunal that sits to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done…” Currently being debated amongst the legal fraternity is whether it was proper for Justice U.V.Bakre of the Bombay High Court at Goa to have heard any cases pertaining to the Goa Mining saga. Recently a bench of the High Court on which Justice Bakre was party directed the Goa Government to renew the mining leases. Though I would not like to be privy to gossip, nor enter into the merits or correctness of the decision, nor make any comment thereon, the debate unfortunately will bring the Judiciary into great disrepute and will shake the faith and confidence of the public in the system of justice. The issue being debated is whether Justice Bakre who was the Law Secretary of Goa from 21st November 2005 to 8th April 2007 a crucial during which the State government took several controversial decisions on the Mining issue, ought to have heard the mining case and participated in its decision? The Shah Commission which probed the Goa Illegal Mining scam has held officials responsible for the irregularities that perpetrated. Infact Justice Bakre for having held the crucial post of Law Secretary and having been privy and party to many of those controversial decisions is being now claimed to have been a disqualification for him to have heard the matter and that he should have infact recused from hearing any matter pertaining to the Goa Mining case. As the on going probe by the Special Investigation Team into the illegal mining scam would encompass all officials of the Goa Administration who were directly or indirectly concerned with the decisions on the mining issue during the relevant period, Justice Bakre may also come within the ambit of that investigation. And surely, the decision would not be seen to be giving any seal of approval to any act done for an earlier period of time. Infact Advocate General Atmaram Nadkarni, who had access to the files, was duty bound to remind Justice Bakre that as Law Secretary he had been party to many decisions on the mining issue. But having himself thrown professional ethics to the winds by appearing for and against the government in so many matters what else could one expect from an Advocate General whose intimate ties with the mining lords involved in the illegal mining scam is no secret. The doctrine of judicial recusal is underpinned by important public policy reasons. The judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially. To maintain society’s trust and confidence, justice must not only be done but be seen to be done. In every judicial proceeding there is need to uphold the public policy of maintaining the integrity of the judiciary and at the same time achieving fairness to the parties concerned. Else the trust of the people will be shaken, when the judiciary does not discharge its duties as per the mandate of the Constitution. In the words of Jonathan Sacks “True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denials of the rights of others”.
Posted on: Sat, 23 Aug 2014 07:45:51 +0000
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