A question of recusal as per the classical norm is - when the Judge has had some interest in the matter by virtue of his prior dealings in respect of the Lis, be it the party or subject.
However that is not the only norm and lets explore other avenues of it. Essentially it may be part of the subject matter interest.
Law as per Constitution of India
All Judges take oath under 3rd Schedule of COI as under
"I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."
- Citizens are grinded between the law and the executive, and rate of grinding or being stuck in the grinding machine, is determined by speed, acceleration, deceleration.
- Having sat and decided a matter, as a responsible judge, who intends and has only justice as his aim, & wants to see that justice to prevail over anything including affinity/favour, to one's own decision; a Responsible Judge would be happy to be corrected by a larger bench of OTHER Judges.
- This is because neither Judgeship or Justice, is a right of ownership whereby one can claim indefeasible right to sit in.
- Justice is a Divine Social Duty. A Debt payable to the Society which Justices undertake by the Oath. The Oath is a Social Oath. The moment the Social dictate is exhibited, the oath has to be honoured and no loophole can be allowed. A refusal of social dictate amounts to breach of Oath at the slightest calling.
- Hence any principled judge, would be happy if larger bench in which he is not a judge, confirms his view, exclaiming – "Thank God, I am not Wrong". If the larger bench finds his view wrong, he would be happy and would exclaim: "Thank God, you[God] prevented my wrong".
- These are the principles of Sanctity to the Temple of Justice and a preacher can't claim ownership of Ritual or True Worship. The Temple of Court, is for Worship of Justice and not and monarchy of Judges or Advocates. Judges or Advocates are mere preachers.
- The Judiciary is not Supreme. Its Justice that is Supreme. And all systems which don’t see this are Anarchist and against Society.
Sociological Impact: Miscarriage of Justice
- Suppose you are convicted by Judge. If you appeal and it comes before the same judge, it puts you to unfair disadvantage, as you have to, not only disprove the elements of offence, but also change the mindset of the Judge…. even before beginning the hearing, which is impossible herculean task.
- Every judge exhibits his proclivities in his decision, which is a bent or bias. This proclivities make you vulnerable and the bias is so strong on you, that you are trapped and already convicted. This itself is a confirmed double jeopardy.
- This puts you 10 kilometer far away from starting line in 100 meter race. On the contrary the otherside has to simply sit with unfair disadvantage. Had impartial judge been assigned, even the otherside would have been at same starting point as you[convict].
- Thus for the sake of fairness to the Litigants a recusal is mandated in such situations.
Principle of 2nd Opinion
- We all come across in our lifetime a situation where we seek advise from a Doctor on a particular disease. If we have doubt, we seek opinion from another Doctor, who is atleast senior, reputable than the Doctor from whom we sought 1st opinion.
- As a matter of process, when a 2nd opinion is made there are 2 thing ascertained. [a] what is the actual diagnosis & [b] why has the 1st Doctor come to his 1st opinion. After that we are given a 2nd Opinion by the 2nd Doctor. Thus the reasoning of the 1st opinion is also in scrutiny.
- This applies to the Legal process – Courts and lawyers too.
- I know it will be weird, but - what if the same Doctor/Lawyer is to give 2nd opinion? Would you go to the 1st Doctor/Lawyer for 2nd Opinion on very same facts?
- If we go to the very same Doctor/Lawyer, and he gives an opinion, it would amount to review of the 1st Opinion. Do see the Psychology aspect next discussed.
- In the same principle, the recusal in a decided matter by the very same decission maker is required to judged at the outset.
Psychology and Bias
- If a decision maker has decides a matter, it is assumed that it is 100% final on his part. He does so applying full of his faculties. This he does without favour or affection as per the Oath.
- He thus becomes Funcus Officio as relates that decision once a decision is rendered.
- So if a judge re-sits would lead to following conclusions:
[a] that the decision of 1st instance, is WRONGLY decided: resulting into loss of HIS credibility and competence, as by his re-sitting - he admits that he has not done his job properly & completely at 1st instance. Thus he is required to recuse at the least….. Also, this renders the 1st decision vitiated at the outset.
[b] that the decision is final on his part: & therefore he cannot sit in appeal of his own judgment. He is estopped from Re-judging and principle of Res-Judicata would apply against him. This is in addition to be Functus Officio.
- A decision, is intellectual expression and status/standard of such 'decision maker' and is a personality which attached to such decision maker. That’s why there is concept of Contempt. Therefore a decision is read with the Judge and is therefore HIS. Therefore there is always bias attached to decision made by a person, as the decision is HIS, and this intellectual expression and status/standard, also becomes subject matter of Lis [refer to the 2nd opinion above].
- By the nature of the construct of mindset, the decision maker is bound to conform with HIS decision[being his intellectual expression and status/standard as such].
- If the decision maker doesn’t recuse, then he can conceal and pretend to be, not wrong at 1st instance, as if he say that he was wrong in 1st instance, it would 'exhibit' incompetence in all 1st instance/s of HIS decisions. The string of this emotional attachment to HIS decision[being his intellectual expression and status/standard as such] lays foundation for bias, and continuance and defence thereto, is the possessory bias vis-à-vis the 2nd opinion.
- A decision maker is acquiescence to HIS decision[being his intellectual expression and status/standard as such] and would block and foreclose several arguments against HIS decision[being his intellectual expression and status/standard as such]. This would usually happen.
- Any "reason" to continue to sit, and defences, such as superiority, inferiority, anteriority, etc. shows clearly the affection, inclination, intent, bent, willingness, and therefore admits of "absence of dispassion/affection" and itself is a self "defended bias". Thus failure of Oath
- Therefore once the judge has lost credibility/competence, or estopped, resjudicata, or has become functus officio, he can't hear the lis and is required to recuse without anyone to submitting the aforesaid background - At All.
- In Conclusion the factors of bias are [a] subject matter decision of 1st instance [b] Functus Officio [c] resjudicata [d] Unfairness and miscarriage of justice [e] Bias of favour 'HIS decision' [f] defence bias [g] intent to defend decision [g] question of competence in all 1st instance.
- These factors ought to be considered by the Constituting Authority at the time of assignment/s. It seems that time has come to code down such bias.
- Needless to say, all or any decision/s [even 1st instance] rendered by above glaring fault is a Nullity.