Justice Abhay S Oka interview: There is much clamour around Arvind Kejriwal’s request seeking the recusal of Justice Swarana Kanta Sharma from hearing the CBI’s revision plea against the discharge order in the Delhi excise policy case. The burning legal question of whether a judge must recuse on the ground of a prima facie view they have previously taken – which is indicative of bias – has come sharply into focus. Crucially, the matter also prompts a deeper look into the recusal jurisprudence.
In an interview with The Indian Express, former Supreme Court judge, Justice Abhay S Oka, explains the evolving legal landscape on “recusal”, the “master of the roster” system, and why he believes judges must sometimes show the “magnanimity” to ignore frivolous allegations and stay on a case.
Edited excerpts:
The central issue in the Arvind Kejriwal case is the court’s previous prima facie observations which, the petitioner feels, have created a fear of bias. Where do you draw the line between a judge’s right to form a prima facie view and a ‘reasonable apprehension’ in a litigant’s mind that the case is already decided?
Justice Abhay S Oka: The law is not crystallised. There are a number of judgments of the Supreme Court. Why is it not crystallised? Because it basically depends on the judge or the bench concerned, broadly. There are two types of recusals — one is when, as a judge of the high court, you decide that you will not take up cases of your juniors, because sometimes, juniors become part of your family.
Then you decide you’ll not take cases of those who are related to you. Lawyers who are related to you. Therefore, the normal practice is that after you take the oath, you inform the registry not to place cases of these lawyers before me.
The second category of recusal is when we hear the cases, we realise that the judge has appeared for one of the parties or the judge has appeared in a connected case. Therefore, the judges follow a well-settled rule that justice should not only be done, it should also be seen to be done. The moment it is noticed that the judge was connected with that case in some manner, either he knows the parties, or he has appeared for that particular litigant, or in a connected case, he’ll recuse himself.
In such cases, it does happen that you start hearing a case, you spend some time, then some lawyer gets up and says, ‘Sir, perhaps you may not be remembering, it may be 15 years ago or 20 years ago, you appeared for this litigant’, or ‘you appeared in a litigation pertaining to property’. It does happen that sometimes after we reserve a judgment, somebody brings it to notice and then we recuse.
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Second is the point of the prima facie finding. But before that, if a litigant has apprehension in his mind that he’ll not get justice from a particular court, he has remedy to apply for transfer. There are provisions under the CPC (Code of Civil Procedure) to apply for transfer, and a litigant can apply to the chief justice for transfer.
If the chief justice doesn’t entertain that request, they can challenge the order before the Supreme Court. Why should a litigant embarrass the judge in open court by saying that ‘I’m making allegations against you and therefore you should recuse’? The proper course in such a case for the litigant is to go before the chief justice and apply for a transfer because there is a forum available to seek transfer, so that there, you can put it on record that this is an apprehension.
You feel that a judge is carrying a prejudice against you and therefore transfer the case to some other court. Such applications are being filed only in the Supreme Court, very regularly transferred from one high court to another. Somebody feels that he will not get justice from the high court in a particular state where he applies for transfer to the Supreme Court, and as far as the same court is concerned, he can apply to the chief justice. This is the proper code.
So, a litigant is supposed to go to the Supreme Court to challenge that particular oral direction or order?
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Justice Abhay S Oka: They can do that. They can approach the Supreme Court. They can always say that we approached the chief justice of the high court, who is not considering our case, so they can approach the Supreme Court. This is the better way of doing it.
Coming to the judge recording prima facie observation, let us go by first principles. I’ll give a simple case. Suppose a writ petition is moved before a judge for ex parte ad interim relief. He grants ad interim relief after hearing the petition and records prima facie observations. He has to record prima facie observations before passing a drastic order of interim relief. Now, the remedy for the aggrieved party is to come to the court and apply for the vacating of that interim relief.
It happens day in and day out. We express a prima facie view of a case while passing interim orders, but ultimately on some day we end up dismissing the case because prima facie view is prima facie view. When we express a prima facie view, obviously, there’s no detailed hearing given to the respondent on the other side, and therefore, that is always subject to change.
In grant of any interim relief, ex parte interim relief with prima facie observation, the remedy is available to the respondent to go and apply for vacating that relief. And if the court doesn’t indicate that relief, we’ll challenge that order.
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During the course of a hearing, especially in the high court and Supreme Court, the moment the case is called, we express our view. Sometimes we tell the petitioner ‘You don’t have a case’, or we say ‘There’s a direct judgment against you’.
Why do we say that? We say that because we want to bring the best out of the lawyer appearing for the petitioner, or if we say that about the case of the respondent, so that the petitioner or the respondent has noticed what is passing in the judge’s mind, and that is the very object of expressing openly in the court.
Sometimes in the high court, the moment a case is called, we try to tell the petitioner, ‘Look, there is no case’, or we say ‘This judgment is against you’.
Ultimately, at the end of the hearing, we may end up granting relief to the petitioner.
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One must understand why judges should be very expressive in the court. Because the lawyers must understand what is passing in the mind of the judge. Suppose I want to take a particular view, but if I don’t express it openly, how does the lawyer counter it?
If somebody says a judge has expressed a prima facie view against me, or the judge has given some prima facie observation in the order, I don’t think it can be a ground for transfer.
This is the judicial system in which we work. There are cases and cases, I, as a sitting judge in the Supreme Court, on a question of the law, may take a view, which is directly against the view which I have taken in the high court, because the law is not static. I can take a different approach, which I had done in one of the cases. In one of my judgments, I had taken a particular view. But now, for these reasons, I’m taking another view.
Now, suppose in that case, a lawyer would have got up and said, ‘Why are you hearing this case? You already made up your mind about the maintainability of a particular petition in the high court judgment’. Can he seek recusal? My answer is no because this a legal system. In the high court, he can always argue before me that you may have taken the view in the high court, but there are subsequent judgments, and the law is different. If we accept such things that prima facie view is expressed by a judge and, therefore, seek a recusal, or in a similar case at some place and some other matter, a judge has taken a particular view, therefore, apply for recusal, the legal system won’t work.
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Even if sitting as a single judge in a high court, I take a particular view in a particular case, in some other case, some lawyer will persuade me that your judgment requires consideration, which may refer to a larger bench. To be very candid about it, only because a judge has expressed a prima facie view in some other case, I don’t think, per se, that is a ground for seeking recusal.
Justice Abhay S Oka also emphasised that prima facie opinion in others matters cannot become a ground to seek a judge’s recusal.
In high-stakes political cases, how should a judge evaluate whether a recusal plea is a genuine plea for justice or a strategic attempt at ‘bench hunting’?
Justice Abhay S Oka: Firstly, the judge will have to apply his mind whether recusal is sought not on any genuine ground, but to avoid the bench. There are some judges who, the moment they find that somebody gets up and makes allegations against them, they recuse.
That’s a very easy option for judges because it may be applied to take away a case from you. Therefore, judges have to be very careful. Ultimately, the judge has to be satisfied with what is told to him that recusal is needed. And there are several factors, complex factors, which work in the mind of the judge.
There can’t be a straitjacket formula.
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Part of the current row involves a judge attending events organised by bodies perceived to have certain leanings. Do you believe sitting judges should adhere to a stricter code regarding public engagements to preserve the appearance of neutrality?
Justice Abhay S Oka: When you assume office, take oath, you are bound by certain constraints. Let’s take an example of a body or an association with political leanings or it is connected with some political party. My personal view is that as a sitting judge, you should not attend, because we have to make inquiries.
Suppose somebody comes inviting me to a function. I have to make inquiries. I’m not talking about individuals working in the organisation, but when the organisation as such has some political connection. Political link, as a sitting judge, I should avoid. Maybe, after retirement, I can go there and express my views. But as a sitting judge, we should not attend functions of those bodies, which are direct political connections.
There is one distinguishing feature. Several law colleges, law schools, private law schools keep on inviting sitting judges. As the situation in the country had changed during the last two or three decades, many of these law schools are run by trusts or societies headed by politicians.
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When we are invited by law colleges to address students, to encourage them, to guide them, we should accept that invitation. Notwithstanding the fact that the chairman of the institution, which runs the college, is a politician because there is no ideology associated with that society.
Incidentally, some politician is part of that body, the society, which runs the educational institutions or there are religious institutions, minority institutions, where people from one religion are running the institution. But if they are running a school or college, if I am called as a sitting judge, I will go there to teach the law students to encourage them. There’s nothing wrong in attending a function of such an organisation.
Second scenario, where a sitting judge ought not to be attending a function organised by any association that has a political link or political patronage or political connection. He goes there, expresses views on law or on the Constitution, then somebody can say that he has only expressed views on law. But if a sitting judge goes and attends a function on such a platform and talks about his religious inclinations, his political inclinations, then that is improper. Somebody might say that in a connected case, the judge should recuse.
You are saying that if a judge goes to an event organised by a political outfit or an outfit having a political leaning, it is okay if they talk about the law?
Justice Abhay S Oka: I must clarify. Firstly, I’m saying sitting judges should not attend. That’s my firm view. No second opinion on that. But suppose some judge thinks it fit and attends the function, then it’s important to note what he expresses.
Whether you are talking only about law or whether he is talking about some political concept or religious concept. If he talks about politics, political leanings, or religious concepts, that will be objectionable.
I repeat, sitting judges should avoid.
What remedy does a judge have?
Justice Abhay S Oka: Let us take a scenario where absolutely baseless allegations are made by a party in person or lawyer against the judge in support of the plea for recusal. Maybe some judge may think of initiating a suo motu proceeding for criminal contempt and the moment he initiates the proceedings, obviously, he’ll have to recuse himself.
I have faced allegations throughout my career. My personal view is that even if allegations are made, the judge must show magnanimity and just ignore that, and refuse the prayer for recusal.
Lord Denning (English barrister and judge) has said that contempt jurisdiction should not be invoked to protect the dignity of the court. The dignity must stand on a surer foundation. Therefore, if somebody makes frivolous allegations, I may simply say, Forget about it, but I’m not recusing’.
I don’t think judges are bound to write an explanation in the order that allegations against him are frivolous. They shouldn’t write that.
India currently has no statute or binding code for recusal, leaving it entirely to the ‘individual judicial conscience’. Given that we are witnessing an upswing in recusal applications in sensitive political matters, is it time for the Supreme Court to lay down a formal, objective framework for recusal?
Justice Abhay S Oka: No. Somebody may say that it is required, but placing myself in the position of a judge of the constitutional court, I will find it extremely difficult to frame any comprehensive guidelines on this, because of the very nature of the subject. It’s all related.
It all depends on the conceptions. I’ll give an instance of the Bombay High Court. When I was a judge of the Bombay High Court, at one point in time, a large number of judges had said that cases of a particular lawyer should not be placed before them. Before that, maybe the lawyer was aggressive for various reasons. That also doesn’t sound good. If somebody wants to create a scene in the court, somebody wants to us to recuse, he’s successful in doing it.
I think recusals do not have to be on the ground that somebody is getting up and making false allegations against judges. There may be grounds available for a particular litigant to seek recusal, but those may be very rare cases. Otherwise, if we encourage lawyers to get up and read allegations against the judge concerned in open court, how the legal system will function?
How has the recusal jurisprudence evolved, say, from the Manak Lal case to the NJAC case?
Justice Abhay S Oka: NJAC, there are also differences of opinion. On the issue of recusal, some difference of opinion, I am not saying in its entirety. Then there was another case where an issue was referred to a larger bench. The argument was that the judges who are forming a part of a larger bench were a part of the smaller bench, which has taken a view and recusal was sought. It is a very well-known judgment.
The judges took a view that it’s the larger bench. So sitting in larger bench, we may also take a different view. Why not? Because it ultimately forms collective wisdom, forming part of a larger bench, and we may take a different view. Therefore, recusal was not entertained.
Looking into the very nature of this plea of recusal, it’ll be very difficult to lay down a comprehensive law. This happens very rarely.
This is maybe an aberration in the system. Ultimately, it is the choice of the judge. Some judges will feel that instead of going into all sorts of allegations, he must recuse. Again, there will be questions asked by the respondent on the other side. That you are allowing somebody to avoid the bench.
Is there no authoritative judgment that can be referred to on recusal?
Justice Abhay S Oka: There’s an ongoing debate, there are views against views on that. Ultimately, the principle that prevails is that justice should not only be done, but it should manifestly seem to be done. It’s very difficult to lay down concrete propositions of law on recusal.
When a recusal occurs in a high-profile matter, it often returns to the chief justice (as master of the roster). What safeguards can perhaps be in place to ensure that the subsequent allocation takes care of the situation?
Justice Abhay S Oka: I was part of two high courts, Bombay and Karnataka. In case of recusal, there is no discretion for the chief justice because when I was there, the practice was, say, for two months or two-and-a-half months at a roster and along with the roster, the chief justice used to pass an order that bench number one recuses, then the case will automatically go to bench number two. If bench number two recuses, the case would go to bench number three. It didn’t go to the chief justice.
So each high court has a different system?
Justice Abhay S Oka: Yes, but at least speaking for myself, these two high courts. In fact, in the Karnataka High Court, when I was the chief justice, along with the roster, I used to pass an order. Not only providing for one recusal, but I also used to say that if bench number two recuses, it’ll go to bench number three and so on.
Once there is a recusal recorded by a roster judge, where such a system prevails, and I personally feel such a system should prevail, it automatically goes to the other bench as notified by the chief justice.
Why is there a roster? So that you reduce discretion and manual intervention. A litigant files a case today, he knows before which bench the case will go. This practice was followed at least in these two courts. I don’t know what the practice is today. If there is a recusal by an individual bench, the case doesn’t come before the justice. The matter will go to the registry that knows where the case should go.
