Who Judges the Judges?: Viewing Judicial Recusal and Disqualification as a Litigant

Who Judges the Judges?: Viewing Judicial Recusal and Disqualification as a Litigant

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Volume 14 Issue 1 ()

Every litigant who approaches the footsteps of the judiciary has the right to a free and fair trial. This right not only includes a just result but one achieved through fair means and by an impartial arbiter of law (commonly referred to as a ‘judge’). However, it is possible that doubts might arise against the possibility and potential of the judge being biased. Instead of engaging with these questions, the Indian courts have been defensive and have disregarded public confidence in the administration of justice. Moreover, the anomaly within the entire process of recusal is that the alleged judge reserves the final authority in deciding the matter of his disqualification. In the name of judicial accountability, the judges have adopted the ‘real danger’ test, which only allows the judges to recuse themselves on limited grounds. This paper attempts to critique the current position and highlights the need of importing the ‘reasonable suspicion’ test in our jurisprudence, which mandates judicial disqualification on the apprehension of bias. In the past, Indian courts have conveniently reasoned the adoption of the real danger test looking at the United States position and ignored the presence of the ‘reasonable suspicion’ test followed in other common law countries such as the United Kingdom, Canada, Australia and South Africa. However, with several changes in the jurisprudence surrounding the issue in these countries, we attempt to provide a comparative framework between the models posited by all the above countries. In light of the aforementioned developments, this paper argues for the evolution and the inculcation of the ‘reasonable suspicion’ doctrine.

Cite as: Anshul Dalmia & Pratyay Panigrahi, Who Judges the Judges?: Viewing Judicial Recusal and Disqualification as a Litigant, 14 NUJS L. Rev. 1 (2021)