Monday, October 12, 2009

When should judges not hear cases

When Should Judges Not hear Cases
- Rajeev Dhavan

Justice Kapadia has raised an obscure but interesting question, on when judges should recuse themselves from hearing a case. Sometimes Supreme Court judges do this because they have participated in the case in the High Court below; and, do not want to sit in appeal on their own decisions. Attitudes differ. Some judges feel that if they have only passed a minor order in the Court below, they should not hear the matter. However, in a matter from Rajasthan, where he had been Chief Justice, Justice Lakshmanan disarmingly asked the lawyers at the bar: “Do you object to my hearing this matter?” Dutifully, the lawyers invariably say: “We have full confidence in your objectivity.” Some judges, however, will not touch a case which they considered in any capacity in the court below.

The second class of cases is where the judge recuses himself because he has a personal interest in the case. The obvious example is where it is the judge’s own case, or that of his family or a close friend. The more indirect example is where a judge has some truly remote nexus with a case which has nothing to do with the issues of the matters before them. Irrespective of what the case, Justice Sujata Manohar in the Supreme Court would not hear matters concerning a big Bombay Corporate where she had shares.

An irresponsible controversy was raised about Justice Kapadia participating in the controversial Vedanta case where he was a member of Forest Bench which allowed the mining of bauxite in Orissa in a eco-sensitive tribal area subject to various concessions and conditions. I say the controversy was irresponsible because I must candidly state, that Justice Kapadia is an upright judge whose integrity is unquestionable. Disclosing his interest, Justice Kapadia disclosed that he owned some shares in Vedanta and with candour asked the lawyers appearing in the case whether he would recuse himself from hearing the case if the lawyers had any objections. Or words to that effect. Distinguished lawyers told the judge that he may proceed to hear the matter. Without casting any aspersion on the judge (and there are none), the question is : was this the right thing to do?

My pen travels in the direction of Pinochet case (1999). Five Law Lords heard the case, affirmed Pinochet’s extradition by a majority of 3:2 and declared he had no immunity. Lord Hoffmann was with the majority. After this decision, it was suggested that Lady Hoffmann was connected with Amnesty International. Amnesty had been heard in the case. It was further clarified that Lord Hoffmann was a Director and Chairperson of a sister charity of Amnesty. In the follow up on Hoffmann’s recusal House of Lords observed: “However, close these links are, I do not think it would be right to identify Lord Hoffman personally as being a party to the appeal”; and added that cases of automatic disqualification were not limited to cases of proprietary and pecuniary bias. Indeed, this question arose over Lord Denning not hearing Barclay’s Bank cases because Lady Denning had shares in that Bank.

Similar questions have arisen in India. Prefacing the due process requirements of natural justice, the law declares that justice should not only be done, but must appear to be done. The usual test is: was there a real likelihood of bias? The higher you go in the judiciary; the confidence of the people becomes more and more important because the fate of the nation is often in the hands of a bench of the Supreme Court where one judge can tilt the balance. In Lord Hoffmann’s Pinochet case, the Lords took the view the judge’s interest should be disclosed; and added that “(i)t is no answer for the judge to say that he is in fact unpartial and that he will abide by the judicial oath”. At this level, it is better that even if there is no likelihood of bias and no opposition from any lawyer and litigant, justice must appear to be done.

The Pinochet case came to India through the Punjab Civil Service (2006) case before the Supreme Court of India. Here judges, who had decided a service matter in the Punjab High Court on the administrative side, heard the case on the judicial side. Justice Sinha in the Supreme Court plaintively asked: “We also fail to see as to why two senior Judges who had headed the Committee should have been made part of the Bench (that decided the case)”. The Punjab judges, with disarming candour, asked lawyers appearing in the case if they had any objections. There were none. The judges heard the case. What can any Counsel say under these circumstances? If he says the judge should recuse himself, there would be a mild accusation of bias? If he says the judge should continue to hear the matter, justice may not appear to be done even if there is no bias. Equally, no lawyer wants to lose favour with the judge. Justice Sinha took a tentative view that this was a fit case for judges to automatically recuse themselves. However, Justice Dalveer Bhandari held that the lawyers green-signalled the judge to continue waived their right to future objection. Raising the defence of waiver seems strange. All this was not over just winning or losing a case. It was a question of justice; and confidence in the judiciary.

Personally, it is not fair for a judge to ask lawyers whether he should recuse himself from a case. No lawyer can truthfully answer such a question either on his own behalf or on behalf of a client. It is a question that the judge himself alone can answer. To pass this on for advice from a lawyer in the case is self defeating.

With this, I return to the Vedanta case. Justice Kapadia impeccably followed a practice that if no one objects, a judge may proceed with the matter because his interest in the matter is too remote or incidental to affect the outcome. The practice is not wholly settled. Some judges seek clearance from the bar and the parties; some judges do not. The latter judges do not put the issue to consensual resolution. Justice Kapadia left it to the Bar after stating his interest. That in itself was admirable. But it is not for the bar to decide whether the judge should sit on the bench for a particular matter or not. For those who want to embarrass Justice Kapadia, let them forbear. He is unimpeachable and straightforward.

If a judge has shares in a company, and a case comes before him which affects the company’s prospects and standing, the judge should refuse to hear the matter. This should be a case of automatic recusal. This is what I argued half successfully in the Punjab case – convincing one judge. In the Vedanta matter, any permission was going to enhance Vedanta’s standing and prospects.

There may be cases where the doctrine of necessity requires a judge to hear the matter because no other judge is available. But that is not the case here and would depend on the nature of the judge’s interest.

This article is not about Justice Kapadia or the Vedanta case. This important issue surfaces all the time.

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