Last month, the Calcutta High Court while hearing a matter witnessed the counsel for the petitioner raising an interesting plea. The counsel requested the presiding Judge i.e. Justice Protik Prakash Banerjee to recuse himself from hearing the matter, as he was a Facebook friend of the appearing counsel. Although, the Judge politely obliged, the plea raises a pertinent question i.e. whether a friendship between a Judge and a lawyer appearing before him, is a ground for the Judge’s recusal as per the law in India. If yes, is a Judge bound to recuse herself/himself even in cases of her/his Facebook friendship. I aim to answer the aforesaid questions in the present post.
The post shall begin by discussing the law on recusal of a Judge in India, including the grounds on which a recusal can be sought. This shall be followed by a discussion on whether friendship between a Judge and the appearing counsel, is one such ground. The post shall conclude with a discussion on the recent plea in the Calcutta High Court.
Finding an answer to the aforesaid question is relevant because of two reasons. First, the legitimacy of the judiciary stems from the faith citizens pose in it, expecting the Judges to be unbiased in their decision(s) without any personal prejudices. Even a slight doubt on the impartiality of a Judge is damaging to the institution. Second, recently the Florida Supreme Court in a decision has held that mere existence of a Facebook friendship is not sufficient basis for disqualification of a Judge. Therefore, it is pertinent to understand the law in India, since it is highly probable that such a situation may arise in the country again.
Before I proceed, a brief description of the concept of ‘recusal’ would be beneficial. Recusal is the withdrawal of a Judge/judicial authority from adjudicating a case on grounds of a possible conflict of interest or an apprehension of impartiality. If a litigant feels that the Judge/authority hearing the matter, would not be objective, she/he can pray for the recusal of the Judge.
A. Law Governing Recusal of a Judge in India:
Every judicial system in the world is governed by two core principles. First, justice should not only be done but seen to be done (words of Lord Chief Justice Heward); and second, no man should be a judge in his own cause (i.e. Nemo Judex in Re Sua). The two principles are inter-connected, as for the manifestation of ‘actual’ justice, the Judge hearing a case must be objective and should not biased due to her/his interest in the subject matter. It is the second principle which forms the basis of the law on recusal.
In India, a Judge can be requested to recuse from hearing a matter on three grounds.
- A Judge has financial interest in the outcome of a case [Financial Interest/Bias]
For example, the Judge has shares in a company, which is a party before it (Dimes v. Grand Junction Canal (1852) 3 HLC 759.
- A Judge has an interest in a cause which is being promoted by one of the parties [Subject Matter Interest/Bias]
Example- The Judge is a member of an organisation and promotes the same causes like the organisation/party before it (R v. Bow Street Metropolitcan Stipendiary Magistrate, ex Pinochet (2000) 1 AC 119.
- If a Judge has ‘any other’ interest in the matter [Personal Interest/Bias].
If a Judge has either financial or subject matter bias in a matter, he/she in principle is automatically disqualified from hearing it. A situation of a ‘personal bias’ is tricky and requires scrutiny by the Court. The test adopted by Courts in such a case is of a “reasonable apprehension of bias” or “real danger of bias”. The Court assesses whether facts of the case disclose a real apprehension in the mind of others that there is a likelihood of bias affecting the decision. If yes, the Judge cannot hear the matter (Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454).
It should be noted that the threshold to prove the existence of ‘bias’ is extremely high and the bias should be brought to the Court’s attention at the outset. A belated plea of recusal may be rejected by the Court.
Interestingly, the decision on recusal is taken by that very Judge, who’s recusal is being sought. Further, a Judge is not bound to disclose the reasons for her/his recusal from hearing a matter (Supreme Court Advocates on Record Association v. Union of India, W.P (C) 13/2015). Therefore, if a party seeks the recusal of Judge ‘A’ on grounds of subject matter bias, an inquiry and decision on the same shall be taken by Judge ‘A’ herself/himself who can accept or reject the plea, without giving any reasons. This holds especially true for the Hon’ble Supreme Court of India (“SC”) as the scope of an appeal against a SC Judge’s refusal to recuse is limited, unlike the High Courts where a party can challenge a Judge’s refusal to recuse before the Supreme Court.
B. ‘Friendship’ between a Judge and an Advocate as a ground of bias:
An alleged friendship between a Judge and an advocate, arguably falls in the category of ‘personal interest/bias’, thereby requiring a scrutiny on the touchstone of a reasonable apprehension of bias. The stance of the Indian Courts on this front has been fairly clear and they have consistently ruled that given the prestige and reputation attached to the office of a Judge, it cannot be said that a Judge would let her/his friendship with a counsel, affect their adjudication of a matter.
The aforesaid plea of recusal due to personal interest/bias was raised in the case of Mewa Ram v. Narain Das. The Hon’ble Allahabad High Court rejecting it held,
‘I shall not venture even to suppose that the learned gentlemen who sit on the Bench with Lala Ram Nath are so indifferent to their reputation and so subservient as to allow Lala Ram Nath to lead them to pass an order contrary to what seems to them to be just. I see absolutely no ground for interfering and direct that the case proceed to trial with all speed, the stay order is discharged.’
While hearing a similar plea, the Delhi High Court in Sarvadeshik Arya Pratinidhi Sabha v. Kailash Nath Singh 2010 SC Online Del 456, provided tenable reasons behind the aforesaid position of the Courts. It held,
“Further, the allegation of Senior Advocate representing Sh. Vimal Wadhavan has been stated to be completely unfounded and it has been submitted that the applicants‟ Senior Advocate has been a practicing advocate in Tis Hazari courts, has been an advocate on record in the Supreme Court of India and has been a designated Senior Advocate in this court since 1991. During the course of these years he has obviously acquainted himself with innumerable persons of the legal profession.
Further, the Court Commissioner against whom the allegations of bias were levelled was an advocate who later became a Judge of this Court and in fact, he had an unblemished record as a Judge of this Court. Being of the same profession, the two persons are cordial to each other and extend natural professional courtesy to each other but they are not related and there is no reason to believe that the views of said Court Commissioner might be prejudiced or biased due to his alleged ‘friendship’ with senior counsel for the applicant.”
In light of the above discussion, it is clear that the Indian Courts do not treat friendship between a Judge and an advocate as a ground of bias.
C. Plea in Calcutta High Court:
The plea before the Calcutta High Court sought the recusal of Justice Banerjee, on the ground that he was a Facebook friend of the appearing counsel. As discussed above, under Indian law mere friendship between the Judge and a counsel, is not a valid ground for recusal. However, there exists a difference between a traditional friendship (which were involved in the decisions above) and a Facebook friendship. Many believe, a traditional friendship is more intimate as compared to a Facebook friendship, as the latter includes complete strangers as well.
Last year, the Florida Supreme Court (while answering the aforesaid question) aptly described the difference in the two friendships in the following words,
“So it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships. It is no secret that the ‘friend’ label means less in cyberspace than it does in the neighbourhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people. Indeed, ‘friendships’ on Facebook may be as fleeting as the flick of a delete button. Some people have thousands of Facebook “friends.” Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’ Many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology suggestions rather than personal interactions.”
In the above case, the Florida Court while holding that a Facebook friendship is not a ground of recusal, urged its Judges to not participate in Facebook as even a small taint of bias could undermine the public’s confidence in the Judge’s ability to be an objective arbiter.
The Indian Courts have not yet conclusively adjudicated the aforesaid question. In 2018, a petition was filed in the Bombay High Court (Shobha Atmaram Prabhu v. State of Maharashtra 2018 (6) Bom CR 513) requesting the Court to frame guidelines on whether a Judge can recuse herself/himself from hearing a matter, on the ground that an advocate is connected with him on Facebook. The Court dismissed the said petition with the following remarks,
“Many times, personal matters of lawyers regularly practising in the Court, who are the members of the Bar Association, are required to be dealt with. Merely because some such lawyer was a professional colleague while in practice may not act as a disqualification for taking up his matter, and a Judge decides it on the basis of his intimacy with such lawyer and the subject-matter of the litigation or his conscience.”
The above decision of the Bombay High Court affirms the long-standing principles of the law of recusal in India. The judgment affirms that mere friendship between a Judge and a counsel either traditionally or on social media, is not a ground to seek recusal of a Judge and even if such a recusal if sought, the arbiter of such a request shall be the concerned Judge herself/himself.
When a Judge takes the oath of appointment to her/his office, she/he swears in the name of God that she/he will duly and faithfully perform the duties of her/his office without fear or favour, affection or ill-will (Schedule III, Constitution of India). Behind this oath is the expectation that there shall be no taint of alleged bias, on the Judge hearing the matter.
Personally, I am a staunch believer that a person donning the mantle of a Judge, is competent to not let personal friendships affect her/his ability to do real justice. However, a litigant might disagree and a mere doubt in her/his head on plausible grounds, may besmirch the judiciary.
Sadly, the current position of law, keeps the litigant dubious about the objectivity of a Judge who does not recuse herself/himself and lawfully continues to hear a matter despite the appearing counsel being friends with him. One can only hope that just like Justice Protik Banerjee obliged in such a case, the other Hon’ble Judges would too or at least shall give their reasons for continuing to hear the matter. Such a step shall not only increase transparency in the judiciary’s function, but shall also reinvigorate public’s trust in the institution.
[Views are personal]