Role of a judge: When to recuse?

This article is the first one in the Role of a Judge series.

PLATO RECOUNTS Socrates’ description that “four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially”. The impartiality and independence of the judiciary is an age-old discussion, yet the parameters remain indistinct.

Partiality is where the judge has an ‘interest’ or ‘preconception’ that affects his impartiality. Imperfect impartiality is accepted and expected since “judges are but men, and are swayed like other men by vehement prejudices”. The key question is “how much partiality can be tolerated before rule of law objectives are thwarted to an unacceptable degree?”

It is notable that when the law requires impartiality from the judiciary, it does so while being cognisant of the inherent bias that exists in all humans. The expectation of judges is not to be devoid of internal prejudice but to set aside their bias whenever they don the robes, to enable the proper discharge of their duties. As Sir Matthew Hale said, “in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked”. 

Imperfect Impartiality 

Imperfect impartiality accepts that the quest of “remaining entirely neutral while assessing the persuasiveness of one argument against another is a near-impossible task for a human”. Despite that, “impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made”. It is widely codified across jurisdictions that “any judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”. 

Both the U.K. and India have adopted the “real danger” or “reasonable suspicion” approach, summarised in R v. Gough (1993) as “whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand”. In the U.K. the test for impartiality, expounded in Porter v. Magill (2002), is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. 

The Supreme Court of India in Indore Development Authority v. Manohar Lal (2019) held that “the ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view". In a comparable vein, the measure in the U.S. is “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the [judge] could fairly discharge his duties".