LAST year, three judges of the Supreme Court recused themselves from hearing a case. In 1964, Purshottam Trikamdas, one of the most fearless advocates ever, asked the Chief Justice of India (CJI), Justice P.B. Gajendragadkar, not to sit on a Bench which was examining the validity of the quantum of compensation paid for the acquisition of a piece of land because he was a member of the cooperative society for which the land was being acquired. It was an obvious case of a judge having a pecuniary interest in the case. The CJI did recuse himself, but not before asking the Attorney General, C.K. Daphtary, whether he should recuse himself. Daphtary replied he should.
The law and practice of judicial recusal do not suffer from an excess of clarity. Grant Hammond, Judge of the Court of Appeal of New Zealand and a former professor of law, brings to bear on the subject insights he had gained on the Bench and the discipline of a law teacher. His book covers the law in Britain, Australia, New Zealand and the United States. The U.S. has codified the law in a recusal statute, which is appended to the book.
In England the law developed slowly. Pecuniary interest is an obvious ground for recusal. But, how much of it? In 2000, the Court of Appeal held that “any doubt should be resolved in favour of disqualification”. In the case concerning the Chilean dictator Augusto Pinochet's extradition, Lord Hoffmann omitted to disclose that he was both a Director and Chairman of Amnesty International Charity Limited. Amnesty International had been given leave to appear as an interlocutor in the case. There was no suggestion of pecuniary benefit from the litigation or actual bias on the part of Lord Hoffmann.
The House of Lords' ruling against Pinochet was, however, attacked on the grounds of bias on the part of Lord Hoffmann. Lord Browne-Wilkinson suggested that there were two ways in which a person could be conceived of as a judge in his ‘own cause': “First [the principle] may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party…. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions.”
Lord Bingham said, “If one were to attempt a modern paraphrase, it might perhaps be that a judge must free himself of prejudice and partiality and so conduct himself, in court and out of it, as to give no ground for doubting his ability and willingness to decide cases coming before him solely on their legal and factual merits as they appear to him in the exercise of an objective, independent and impartial judgment.”
Lord Devlin said, “The social service which the judge renders to the community is the removal of a sense of injustice. To perform the service the essential quality which he needs is impartiality and next after that the appearance of impartiality. I put impartiality before the appearance of it simply because without the reality the appearance would not endure. In truth, within the context of service to the community the appearance is the more important of the two. The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all.”
Lord Bingham's exposition raises a legitimate question. What if the judge honestly, passionately, believes in an ideology – political, economic or, indeed, religious – which is likely, in the eyes of a reasonable observer, to affect his judgment? This animal, “reasonable observer”, walks freely in the book. He is the citizen who judges the judge's impartiality, a fact which judges overlook.
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