Not without an explanation (Why judges recuse themselves from cases)

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 Not without an explanation (Why judges recuse themselves from cases)

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• Recusals : Whenever a judge removes himself /herself voluntarily from any case, it is a big decision. That cannot be left to the judge's personal discretion - he/she must declare the reasons for recusal.
• Recent recusals by judges : There are some important cases from recent past -

1. M Nageswara Rao case - Three judges recused themselves, but without giving any order in writing, and no one knows why the judges considered themselves incapacitated to hear that case.
2. Ayodhya land dispute - One judge recused himself, again without any written order specifying the exact reason.
3. Gujarat High Court - Two judges withdrew from a set of controversial cases, with no reasons assigned.
4. Bombay High Court - Three judges recused themselves on a petition regarding the death of Justice BH Loya, and none gave their reasons in writing.

• Oath of office : When judges take the oath of office, they promise to perform their job "without fear or favour, affection or ill-will". In case of any judge, fear or favour affect independence (a state of being) and affection or ill-will undermine impartiality. So a recusal is hitting at the core of all of it.
• Why recuse? If a lawyer simply points out some possible conflict of interest, and a judge recuses, it is helping the lawyer manage law by reaching a Bench of his choice. A bad idea.
• Some axiomatic principles : However, in some cases, it is pretty clear that judges can recuse - if a judge appeared for a litigant in some earlier case as a lawyer, or if a judge is faced with a case involving himself ("no person should be a judge in her own case" principle).
• Owning shares : If a judge owns shares of any firm in a financial litigation before him, that is a disqualification. That comes from an 1852 House of Lords judgment. But what if we cannot get judges who do not own shares in the concerned firms? That happened in a 1980 case involving BP and Shell. So the right principle is that a disclosure of such facts should happen, and if neither party has a problem, then case can be heard. A well-defined system is needed.
• A close example : In the plea challenging the 99th Constitutional Amendment (which setup the NJAC) - Supreme Court Advocates-on-Record Association v. Union of India (2015) - Justice Khehar's recusal was sought. J Chelameshwar gave a canon on it - "Where a judge has a pecuniary interest, no further enquiry as to whether there was a 'real danger' or 'reasonable suspicion' of bias is required to be undertaken. But in other cases, such enquiry is needed, and the relevant test is the 'real danger' test".
• What is "real danger" all about : That remains open to understanding. And who will decide that?
• Both cases are destructive : If a judge does not recuse where he should, or if he recuses where he should not have - we have equal destruction. Recusals cannot be allowed to lead to bench-hunting, or as an excuse to evade judicial work. 
• Summary : When judges recuse themselves from a case, it is a serious matter and a proper code must be laid out to govern such situations.

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