This article was authored by Tanya Tekriwal & Shilpi, students at the National University of Study and Research in Law, Ranchi. This article attempts to shed some light on the importance of recusal, and how it ensures judicial independence and impartiality.
Abstract
“Judges do not stand aloof on these chill and distant heights, and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.” – Benjamin J. Cardozo, The Nature of The Judicial Process 168 (1921).
Judges deliver judgments after applying laws to the given facts. This is the common way of delivering justice. It is called legal justice. There is something called justice beyond the law, justice beside the law and justice beneath the law. Following the laws formally is called formalism in American realism. But this is not the era of formalism, and society needs the grand style of justice. It is often said that the judges decide cases while sitting in an air-conditioned room without knowing the real temperature of the outside world. But the moment they will start taking care of the temperature of the outside world, they will forget their legal duty. The moment they will inquire about the temperature outside, people will start questioning them.
Similar is the case of recusal of judges. When the judges start bridging the gap between the courtrooms and the outside world, everyone becomes suspicious of their relationship with the two opposite ends; and they start considering the judge as being biased in his rulings and pronouncements.
Recusal lies at the heart of our understanding of the role of the courtrooms in a democracy. It is meant to ensure judicial independence and impartiality; and to protect the legitimacy of the courts as well as the reputation of the judiciary. Without reforming the various aspects of recusal law, public confidence in the judiciary, the primary source of judicial legitimacy, will continue to wane. A judge is likely to feel a natural sense of awkwardness when asked to recuse himself on the ground of apparent risk of bias, and this may incline him to grant it.