Context
Recent recusals by judges of India’s higher judiciary have sent mixed ethical signals. While a few judges have openly recorded reasons for stepping aside—citing attempts at influence or conflict—most recusals, especially in politically or socially sensitive cases, continue to occur without explanation.
This contrast has revived a long-standing debate:
Should judicial recusals remain a matter of personal discretion shrouded in silence, or should they be governed by transparent norms in a constitutional democracy?
The issue has gained renewed attention as the Supreme Court itself has recently urged High Courts to be more transparent regarding delayed judgments, exposing an ethical inconsistency between internal expectations and recusal practices.
Illustrations of Mixed Signals
A. Exceptions: Transparency in Recusals
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- A member of theNational Company Law Appellate Tribunal recorded his recusal after a senior judge allegedly sought a favourable order (The Hindu).
- A judge of theMadhya Pradesh High Court publicly named a BJP MLA for attempting to influence his decision in an illegal mining case (The Hindu).
These instances demonstrate ethical courage and commitment to openness, reinforcing public trust.
B. The Norm: Silent Withdrawals
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- M. Sundreshrecused from a bail plea after 13 adjournments without stating reasons.
- Multiple judges of theBombay High Court recused from hearing the Bhima Koregaon case, as did five Supreme Court judges in Gautam Navlakha’s plea—again without explanation.
- JusticeBela Trivedi’s recusal from the Bilkis Bano case triggered public speculation due to absence of reasons.
These cases highlight how opacity fuels suspicion, even when no impropriety exists.
Core Ethical Issues
1. Absence of Formal Rules: India has no statutory framework governing judicial recusals. Judges may voluntarily recuse themselves without recording reasons, unlike jurisdictions that require disclosures to preserve institutional integrity.
2. Transparency vs Judicial Independence
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- For silence:protects judges from pressure, avoids sensationalism.
- Against silence:undermines accountability and invites speculation.
The ethical challenge lies in balancing independence with answerability.
3. Public Trust and Perception of Impartiality
Unexplained recusals weaken the principle that justice must be seen to be done, especially in cases involving:
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- Political actors
- Human rights
- National security
4. Inconsistency in Ethical Standards
The judiciary demanding transparency from the executive and legislature, while retaining opacity for itself, creates a credibility deficit.
Legal and Constitutional Framework
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- Article 14– Equality before law: includes expectation of equal and fair process.
- Article 21– Due process as part of life and liberty.
- Judicial conventions(not law): recusal is treated as a matter of individual conscience.
- No codified law or binding guidelineson when reasons must be disclosed.
The Supreme Court has repeatedly emphasised transparency in governance, yet recusals remain unregulated.
Ethical and Philosophical Perspectives
Deontological Ethics (Duty-based): Judges have a duty to disclose reasons when stepping aside, as silence affects litigants’ right to fair adjudication.
Public Trust Doctrine: Judicial authority is held in trust for the people. Trust cannot survive secrecy in matters affecting justice delivery.
Procedural Justice Theory: Fairness is judged not only by outcomes but by clarity and fairness of process.
Relevant Judicial Voices
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- Former JusticeKurian Joseph has emphasised that judges owe reasons to the public, especially in recusals.
- The Supreme Court’s recent push fortransparency on delayed judgments (reported by Times of India) strengthens the argument for similar openness in recusals.
Ethical Dilemma
Does silence in recusal protect judicial independence—or does it undermine the very legitimacy of that independence?
This dilemma reflects the tension between institutional self-protection and democratic accountability.
Way Forward
1. Formal Guidelines on Recusal
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- Mandatorybrief disclosure of reasons, except where disclosure itself causes harm.
- Standardised categories: conflict of interest, prior involvement, external influence.
2. Institutionalising Transparency
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- Recusal reasons to beplaced on record, not left to leaks or speculation.
3. Consistency in Ethical Standards
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- Judiciary must apply to itself the same transparency norms it demands from other institutions.
4. Protecting Judges While Ensuring Trust
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- Reasoned disclosure can coexist with safeguards against harassment or pressure.
Conclusion
The recent pattern of judicial recusals reveals an ethical crossroads. While a few judges have embraced transparency, the dominant culture of silent withdrawal continues to erode public confidence.
True legitimacy flows from reasoned openness, not unexplained discretion.
The debate on recusal transparency is, therefore, not about individual judges—it is about preserving the moral authority of the judiciary itself.
