Ten recusals in Bhima Koregaon raises the question: Should judges disclose reasons for withdrawal?

On April 19, Justice Sadhana Jadhav of the Bombay High Court recused herself from hearing petitions related to the Bhima Koregaon case. She was part of a two-judge bench that was hearing petitions relating to the quashing of cases against activists Rona Wilson and Shoma Sen and the bail plea of advocate Surendra Gadling, amongst other petitions.

Counting Jadhav’s recusal, there are now five judges in the Bombay High Court who have recused themselves from hearing petitions related to the Bhima Koregaon case. Apart from the Bombay High Court, five judges of the Supreme Court had earlier recused themselves from hearing pleas by another accused in the case, activist Gautam Navlakha.

In total, as many as 10 judges have recused themselves from hearing charges in the controversial Bhima Koregaon case, where activists have been accused by the Modi government of attempting to assassinate the prime minister, amongst other charges.

Judges recuse themselves to avoid any conflict of interest while deciding a case. However, since there is no law governing when and how a judge should resign, the reasons behind a recusal do not have to be disclosed – and often aren’t. This often leads to speculation, especially when mass recusals occur in sensitive cases. Thus, many legal experts have argued that judges should specify their reasons for recusing themselves from a case.

Bhima Koregaon case

Till now, 16 activists, academics and lawyers have been arrested in the Bhima Koregaon case for allegedly sparking off caste violence that broke out at the Bhima-Koregaon memorial near Pune on New Year’s Day, 2018. They have also been accused of plotting to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

While most of the Bhim Koregaon accused were arrested in 2018, only one accused person, Sudha Bharadwaj, has got bail till date. Varavara Rao, who has also been arrested in the case, has been given temporary medical bail.

Independent forensic investigations have suggested that the evidence against the Bhim Koregaon accused was planted on their computers using malware. Activists have approached the court asking for an enquiry into these allegations. Several commentators have also pointed out that the case suffers from procedural lapses and is built on shoddy evidence.

Due to these reasons, many human rights activists believe that these arrests are a tool to clamp down on dissidents and human rights activists.

Reasons behind recusals

While none of the 10 judges have provided any reasons for their recusals, there has been conjecture about conflicts of interest that would have forced them to do so. For instance, senior advocate Abhishek Manu Singhvi told The Times of India that Supreme Court judge Ravindra Bhat might have recused from hearing Navlakha’s plea since he was associated with the People’s Union for Democratic Rights, an organisation with which Navlakha has also worked with.

The power to recuse flows from the principle of natural justice that no person should be a judge in their own cause. Thus, if there are any reasons for bias – such as vested financial interests, family relationships, friendships or a previous attorney-client relationship, then the judge should recuse themselves. Parties to a case can also make a plea for a judge to recuse if they think that they will not be impartial while hearing the case.

However, many in the legal community do not look at recusals – even mass recusals – with suspicion. While agreeing that the high number of recusals in the Bhima Koregaon case was unusual, former Supreme Court judge Madan Lokur told Scroll.in, “I will give the judges the benefit of the doubt. I do not think judges are scared of deciding cases.”

The debate around recusals

Several lawyers and judges have called for changes to the system of recusals. In the 2015 Supreme Court judgment on the constitutionality of the National Judicial Appointment Commission, a proposed alternative to the present system of judges appointing judges, a five-judge bench laid down the reasons where recusals would be justified.

In his concurring opinion, Justice Kurien Joseph wrote that it was the judge’s “constitutional duty” to be “transparent and accountable” and therefore, she should indicate the reasons for her recusal. This will ensure that a judge is not recusing from a case for “irrelevant considerations” like avoiding controversial cases or protecting their public perception.

“Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal,” Joseph wrote.

Several senior advocates, such as KTS Tulsi and Mukul Rohatgi, also believe that the public should know the reasons behind a judge’s recusal.

However, several others disagree. In the National Judicial Appointment Commission judgment, Justice Madan Lokur wrote that giving reasons should not be required. He was apprehensive about what would happen if a party were to challenge the reasoning before a court and the court set aside the recusal, ruling that the reason was frivolous.

“In such an event, can this Court pass a consequential order requiring the learned judge to hear the case even though he/she genuinely believes that he/she should not hear the case?” he wrote.

Senior advocate Abhishek Manu Singhvi also believes that judges need not disclose reasons for their recusal. “This is between the judge and his conscience,” he told The Times of India.

However, Lokur, noting the increasing frequency of asking for recusals, wrote in 2015 that there should be some rules governing the process of recusals: “The questions thrown up [regarding recusals] are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard.”

Other instances

There have been numerous instances of recusals in politically sensitive cases.

Recently, in the Calcutta High Court, four division benches have refused to hear a case relating to irregularities in the appointment of staff in state-run schools by the School Service Commission. One bench, which was listening to the matter, cited “personal reasons” while refusing, whereas the other three benches simply refused to hear the matter.

In the last week of April, Justice Rajeev Singh of the Allahabad High Court, who had granted bail to Lakhimpur Kheri accused Ashish Mishra, recused himself from hearing the case. This was after the Supreme Court cancelled the bail and asked the High Court to decide the bail plea again.

In April first week, two judges of the Bombay High Court recused themselves from listening to a petition by former Maharashtra Home Minister Anil Deshmukh challenging the grant of custody to the Central Bureau of Investigation.

Between January to October of 2015, more than a third of the judges at the Punjab and Harayana High Court had recused themselves from hearing high profile cases, with most doing so without giving any reasons, The Indian Express reported.

Also read:

Why the spate of judge recusals in Gujarat heralds a worrying trend

Five SC judges have recused themselves in Navlakha case. What would happen if all judges did so?