Recusals By Judges

Unexplained Recusals: A Question Mark on Judicial Transparency

On 6 September 2025, a Supreme Court judge abruptly recused from a high-profile bail case after several adjournments, leaving litigants and observers in the dark about the reasons. No explanation was provided, no rules mandated one, and the matter was relegated to judicial discretion. This is not an isolated event but a troubling trend in India’s higher judiciary, where recusals—steeped in principles of impartiality—often result in undermining both judicial transparency and efficiency.

The principle driving recusals is well-settled: "Justice must not only be done but must also be seen to be done." Indian law acknowledges “reasonable likelihood of bias” as the touchstone for disqualification. Yet, India lacks a codified framework governing recusals, leaving litigants and the public with unanswered questions whenever a judge opts out of a case. This opacity not only shakes faith in the judiciary but also delays justice, further burdening an already overstrained judicial system dealing with 70 million pending cases.

The Legal Architecture Governing Recusals

Recusal in India rests on judicial conscience, guided by equity rather than codified law. The Ranjit Thakur v. Union of India (1987) ruling established that even a "reasonable apprehension of bias" warrants judicial withdrawal. Subsequent judgments, such as State of West Bengal v. Shivananda Pathak (1998), reiterated the principle that bias—perceived or real—renders justice meaningless. However, judges are not required to furnish reasons for stepping aside, creating a vacuum in accountability.

Presently, if a judge recuses from a matter, the case is listed before the Chief Justice, who reallocates it to another bench. This procedural reallocation often exacerbates delays, as seen in several high-stakes cases involving political and corporate litigations. With the judiciary handling over 45,000 cases annually in the Supreme Court alone, such disruptions compound systemic inefficiencies.

Cost of Unregulated Recusals

India's lack of formal rules creates several systemic vulnerabilities:

• Possibility of abuse: Parties often attempt to manipulate benches by pressuring judges to recuse, a tactic seen in divisive political cases.
• Delays: Sudden recusals, particularly after months of adjournments, prolong litigation. For litigants, the costs are not just financial but also emotional and reputational.
• Public confidence: Unexplained recusals create a perception of opacity, allowing room for speculation and suspicion—whether about bias, political interference, or strategic delays.

Take, for instance, the recusal of Justices in sensitive cases involving electoral bonds or corporate taxation. In the absence of transparent processes, recusals in such cases often trigger public criticism, portraying the judiciary as susceptible to external pressures.

Lessons From International Jurisdictions

India’s recusal practices stand in stark contrast to those in countries like the United States, where laws specifically address such dilemmas. Under Title 28 of the U.S. Code, judges are required to disqualify themselves on explicit grounds, such as financial involvement, familial relationships, or direct participation in a related case as a lawyer or witness. By codifying these provisions, misleading recusals are largely prevented, and judicial accountability is enhanced.

The UK offers a different but equally instructive model. The ‘real danger’ test, established in R v. Gough, demands substantive and tangible proof to warrant disqualification. This higher standard minimizes the risk of frivolous recusals and ensures that litigants cannot exploit legal loopholes to delay proceedings. Compared to the discretionary nature of Indian recusals, these codified regimes leave significantly less room for ambiguity or manipulation.

The Transparency Gap and Its Institutional Risks

The ongoing opacity surrounding judicial recusals reveals deeper structural tensions in India’s judicial designs. The reliance on unfettered judicial discretion lacks safeguards against misuse. This becomes problematic in cases involving politically sensitive matters, where unexplained recusals give rise to accusations of undue influence or strategic behavior by judges to avoid controversy. Absence of uniform guidelines further widens this credibility gap.

Equally concerning is the impact on judicial workflow. Every recusal triggers a domino effect—the linking of cases to new benches, resulting in cascading administrative delays. For a judicial system where 70% of prisoners are undertrials, this delays access to justice for marginalized groups who can scarcely afford procedural inefficiencies.

Recommendations to address these gaps have long existed but remain unimplemented. The judiciary advocates its independence but resists even moderate reforms in accountability mechanisms. Efforts to introduce written guidelines on recusals have been stalled, fearing they may fetter judicial autonomy. However, autonomy without accountability risks degenerating into arbitrariness, as evidenced by the frequent invocation of recusals without reason.

A Balanced Reform Path

What would a reformulated recusal framework look like? At its core, such a system would need two pillars: transparency and uniformity.

First, judges should record brief but cogent reasons for their recusal. This would not only reassure the public about the integrity of the process but also deter tactical recusals engineered by litigants. Second, India must codify criteria for recusals—encompassing financial interests, prior associations, and family ties—through either legislation or judicially crafted rules. A body comprising senior judges, lawyers, and scholars could draft these regulations to ensure proportional safeguards for judicial independence.

Without addressing these issues, the structural inefficiencies in India’s judiciary will persist. The current laissez-faire approach to recusals undermines faith in judicial systems at a time when public trust in other institutions is already fraying.

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