Judges' bias.

Byline: A.G. Noorani

RECENTLY, the Supreme Court of India heard an argument on the recusal of a judge, from the bench of which he was a member, on the ground that there was a reasonable apprehension of bias on his part.

A five-judge constitution bench hearing a case on the interpretation of a provision of the Land Acquisition Act refused the recusal of Justice Arun Mishra. The petitioners had sought his recusal on the ground that he had delivered in 2008 a verdict, which had to be reconsidered.

The law and practice on a judge's recusal merits separate discussion. What Justice Arun Mishra said in the court on Oct 24 has far-reaching implications. He said: 'No litigant can choose who should be on the bench. He cannot say that a judge who might have decided a case on a particular issue, which may go against his interest, should not hear his case as part of a larger bench.'

But the parties made no such sweeping claim at all. This proposition is altogether different from the one urged by the parties which sought his recusal. The sole issue was a reasonable apprehension in the minds of the litigant and his advocate that, since the judge had expressed emphatically his views on a question of law in a previous case, there was apprehension that he would not approach the latter case with an open mind. This was not an accusation of lack of integrity. It was simply a reminder of a very natural infirmity of the human mind.

It was a reminder of a very natural infirmity of the human mind.

If anything, Justice Mishra's remarks lend support to the objection. For, he said that a judge cannot be suspected of bias for performing his sworn duty. 'Previous judgement cannot constitute bias or predisposition or raise reasonable apprehension of bias.'

He said, 'The ultimate test is for the judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity and with whatever intellectual capacity at his command ... In case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the constitution has to be performed as per the oath and there lies the larger public interest.'

The truth, on the other hand, is that public confidence in the judiciary will be shaken if, faced with a prima facie case of his bias, the judge insists on deciding the case. Worse, Justice Mishra's remarks suggest that a judge can never be biased and, more, he can be judge in...