IMPLICITY

The Recent Dimension To Judicial Accountability

Posted in accountability, legal profession by Gautam on December 11, 2009

In 2004, on being accused of a probable bias in judging a case relating to the (then) Vice President, Dick Cheney- Justice Antonin Scalia rejected such accusations by beginning a 21 page memorandum saying he did not believe his impartiality could be ‘reasonably questioned’. Justice Scalia had gone duck hunting with the Vice President a few weeks earlier. He further commented, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined,”.

4 recent cases of Judges recusal came up in India that time and again reminded me Justice Scalia’s assertion. The issues here were far less controversial. In all 4, the distinguished Judges had pecuniary interests (in the form of shares) in the companies that were parties before them. In Justice Katju’s case, his wife held shares in the company; Justice Raveendran recused himself because his daughter was a lawyer in a firm that did some non-litigation work for one of the parties.

I suppose amidst the hue and cry for Judicial Accountability, we are all making the same remark. But the issue is not all that simple. Judges recusal is not a matter of a ‘probability’ of bias; it is more about the ‘possibility’ of bias. That even an unreal and perceived bias should not end up casting shadows upon the integrity of the Higher Judiciary in the country.

On the other hand, in an Op-Ed column in The Hindu, Senior Advocate of the Supreme Court, Mr. TR Andhyarujina comments, “judges should be made of sterner stuff and should not recuse themselves merely to preserve an appearance of non-bias when there is no real possibility of bias”. He goes on to advance arguments in favour of non-recusal in such matters stating that it was not uncommon for a judge today to have not mobilised savings through investments and therefore, a waiver of conflict on behalf of the parties should be sufficient to ensure an impartial trial.

So the question is if we are infact in a position to determine where to draw the line- what are the instances that would demand that a Judge recuse himself from case. I am inclined to opine in favour of the former: that the slightest possibility of bias, or the appearance thereof must be sufficient reason for recusal; for it is a well known dictum that far more important than justice being done, is the necessity that justice appear to be done.

Think about it.

My guess is you’ll want to have a look at Prashanth Bhushan’s affidavit filed in the Supreme Court in response to contempt charges.

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7 Responses

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  1. sboray said, on December 12, 2009 at 4:57 pm

    Kudos to Justice and Raveendran and Justice Katju for at least trying to portray that justice also appears to be done.Since the Justice Scalia issue has been mentioned, one must watch AND JUSTICE FOR ALL(Pacino) and notice that even the American Judiciary system does not have a squeaky clean image.

  2. Malavika said, on December 12, 2009 at 7:05 pm

    J. Scalia’s non recusal cannot even be raised in this context, considering his duck-hunting trip happened AFTER the case was taken up in the Supreme Court. His memo sounds almost affronted at the possibility of his neutrality being questioned, when it goes on to state that every judge who’s nominated to the Supreme Court has been a friend of one President or the other (??!!). His reasons for not stepping down (even number of judges etc.) were not impossible to circumvent. In my opinion, Scalia ought to have stepped down.

    Recusals in the recent past in India have been stretching the principle though. Especially when the parties state on record that they have no issues with that particular judge hearing the matter.

  3. Gautam said, on December 13, 2009 at 4:14 am

    Scalia’s case is contextual because it doesn’t matter at what stage of the case an issue of recusal comes up.
    However lets consider your side of the issue for a while; and keep the united States’ Judicial system out of the picture owing to the politicisation of the Higher Judiciary- right here in our country, the issue is no less volatile.

    The principle seemed stretched because the parties had signed waivers; what if they had not- would having a financial interest in a case, through shares, be reason enough for a recusal? Now everyone invests- can them be allowed to cast doubts on the integrity of the Judge as such. My point is that it cannot. But be that as it may, the institution is far superior to any Judge and it is the percieved possibility of bias that we must protect from (in my opinion).

  4. Nehaa said, on December 13, 2009 at 11:34 am

    I agree the protection of perceived possibility of bias, what I don’t agree with is Gautam’s take on how the integrity of the judge cannot be questioned on the basis on investments, because everyone invests.

    While speaking in terms of ideals, this argument of yours stands, and so does that taken by Senior Advocate of the Supreme Court, Mr. TR Andhyarujina, when he comments, “judges should be made of sterner stuff and should not recuse themselves merely to preserve an appearance of non-bias when there is no real possibility of bias”. However, when you come down to the common man’s understanding and perception of bias and justice, monetary interest, in any form whatsoever, is an obvious ground to raise questions of bias. Perception of integrity is a very subjective idea, but the fact is that whenever money is involved, it is very easy to point fingers on the integrity of a person.

    Which is why I bring in the thinking of the ordinary person.. as students of law we tend to place judicial integrity and the entire concept of justice and the Supreme Court etc. on a revered platform, and therefore perceive that this is not grounds enough to challenge the integrity of the judge, but to an ordinary person, where the Court (any court including the Supreme Court) is another organ of the Government (and does not command the same respect from them as it does from us), and it’s the job of judges to do right, investing in a company that is a party before you, or having a company as a client of your daughter’s seems enough to cause doubts about whether the judge is actually going to do right,or be influenced by external factors, as any normal human being might be.

    Somewhere, the two concepts are linked… the perceived possibility of bias and whether the integrity of the judge can be questioned. While the institution as such is superior to than any judge (again, we are speaking as law students) the judge represents the institution, and to any common person, the judge IS the institution. Therefore, the moment you talk about perception of bias, you immediately speak about questioning the integrity of the judge.

    Which is why I feel the recusals were justified.. perception of bias leads to questioning integrity.

  5. Siddhant said, on December 20, 2009 at 12:10 pm

    I would go with Mr. TR Andhyarujina because the very fact that justice should be seen to have been done is evident in the reasoning given in the judgment itself. We just cannot expect judges to be machines having no friends, no relations, no investments, etc. This argument does reflect the assumption that no judge can ever be neutral but that’s precisely my assertion. In any case, the realist school tells us how judges are not without human element of preferences. So in that case, no judge should ever judge anything as he/she might have some preferences and justice should be seen to have been done so it shouldn’t be judged by them. Look at this in light of the biggest problem which our judicial system is facing, the problem which many a times questions the very existence of it – the backlog of cases pending before the Court and slow judicial process. Now just because a common man, unaware of the difference between the judge and the institution, a man who would never appreciate how well justice was delivered if he is convicted and would always praise the judiciary if he is acquitted, thinks that justice might not have been delivered, i don’t think is reason enough to elongate the judicial process.
    Therefore, when it is opined that “judges should be made of sterner stuff”, what it means is that they should try to overcome any possibility of bias that might result due to the judge’s relation to the case in some remote way. Of course if there is a huge bias, like the judge himself being a party, then there is a different case..

  6. Ritika said, on December 23, 2009 at 12:47 am

    @sidhant
    If you’ve read Mr.TR Andhyarujina’s piece, you’ll know that you’re not even close to understanding what he’s trying to say (sorry for being this straightforward :P) his references were clearly directed at judges’ recusals.. ‘sterner’ to mean they shouldn’t recuse themselves

    you’re examples furthermore would be considered by only a lay person .. as far law students are questioning this question of recusal, we’re looking at procedure. Firstly what should be the procedure behind recusals, whereby one would inevitably question the ends served by recusals themselves. No one denies that judge should be impartial- even if they always are, this is where the percieved bias come into play.. this is what we should protect against.

    This is where Gautam’s reasoning scores over the rest since he’s arguing in favour of judicial integrity without really questioning the integrity of the judge – which in the cases he’s cited ironically, cannot really be questioned.

    The lower judiciary on the other hand is plagued by corruption and nepotism.. therefore while in Gautam’s reasoning the point is more ‘idealistic’, the issue of recusals is infact a matter of real practicality.

  7. Mika said, on December 25, 2009 at 10:17 pm

    Everyone appreciates politeness on Implicity, even Swarup.


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