Blurb: In his recent rejoinder, Dalmia clarifies the “expressed an opinion” standard to better define when recusal may be appropriate. He addresses the four rebuttals that the author raised and defends the concept of “intellectual bias” and its negative impact. This two-part reply will first examine the justification for the reference rule, the arguments supporting it, and how they fail in light of the author’s response. It concludes by noting Dalmia’s shift from a “reference rule” to a “recusal rule,” which, while more coherent, poses greater risks for the common law judiciary.
Introduction
In the previous part of this reply, I dealt with Anshul Dalmia’s rejoinder to my response, arguing against instituting the reference rule for intellectual bias. In that part, I concluded that Dalmia’s rejoinder now argues for a new recusal rule – with considerably more scope and expanse. In this part, I shall argue against the practicalities of the new recusal rule.
To begin with, it is worth noting that while the appearance of bias makes for a permissive argument for the recusal rule, I suspect it does not outweigh the safeguard that judges can have their minds changes (a position I consider immune to challenge in my last part). I shall assume that this is the case nonetheless, and deal with its practicalities.
Recuse, Reuse, Resume
Dalmia’s new rule has two significant facets. First, it now applies to referee judges as well. Second, it applies, beyond strict referrals to whenever any question of law comes up for reconsideration in any capacity. The relevant standard for exclusion is if the judge has ‘expressed an opinion’ on the issue. When this standard is met, we can conclude sufficient ‘bias’ warranting recusal.
Per Dalmia, such opinion can be expressed both via formal and informal modes. Formal modes include a judge’s decision on a provision’s constitutionality, legality, or meaning. Informal modes refer to a judge’s opinion on academic or scholarly fora; or oral observations in proceedings. He argues that it would be improper for the judge to decide the same question, even if the court in question changes (e.g., High Court to Supreme Court).
I shall now outline the problems that this new recusal rule raises; and how it is even more dangerous and onerous for the common law judiciary than the original reference rule. While I will deal with formal and informal modes separately, this distinction is not strictly enforced due to their overlapping nature.
The Formal Modes
At the outset, the recusal rule is simply too cumbersome to be enforceable. In his original argument for a reference rule, Dalmia himself supports this view. He specifically excludes the possibility for a recusal rule on the grounds that, ‘it might be a logistical nightmare to reject every judge who has expressed an opinion in the past, it would be way easier to disqualify the judges who have referred the judgment to a larger bench’. While internal coherence reasons may have justified Dalmia’s intellectual shift from the reference to recusal rule; a change of opinion on the latter’s profligate nature is not so equally justified.
Secondly, it cannot be gainsaid that judges change their minds. While this has received short shrift thus far; this rule has been built upon, inter alia, the long litany of cases that Justice Mishra cited in Indore Development Authority. Within the formal mode alone, the rule can bar reconsideration of a question opined on by a judge two decades ago. In informal modes, this may extend to a lifetime.
Thirdly, the distinction between general and specific interpretation has confusing consequences when it comes to the statutory interpretation. To begin with, there does not appear to be a controlling axiom to distinguish between the two.
The freedom to internet example may be illuminating in juxtaposition, but this can be credited to ability of constitutional provisions to operate in a polysemic way. Statutory provisions tend to be framed as rules and not principles, and will inevitably bar subsequent reconsideration in all cases.
Even at the constitutional level, landmark cases often involve certain contingent questions of law; which emerge only upon logically prior questions being answered a particular way. For e.g., questions (1) and (2) identified in Government of NCT of Delhi here. What would a judge do when they have expressed an opinion on one class of these; but not the other. Recusal, in such cases, would atleast be a partly excessive measure.
Fourthly, while it is true that all other forms of bias (pecuniary or personal) and its corresponding obligation to recuse would attach to a judge notwithstanding an elevation from a lower court to a higher one; a recusal rule is more likely to disruption. First, even larger benches within the same court have greater potential for inter-bench dialogue and changing of minds. Second, to be elevated would inevitably expose the judge to a larger spectrum of legal opinion; thereby increasing the probability that judges change their mind. Therefore, recusal obligations across fora are excessive.
Fifthly, general/specific interpretation distinction is even more problematic on questions of a provision’s validity/constitutionality. This original distinction is illustrated in case of interpretation (that of article 19) but not of constitutional validity. This is significant for the following reason.
Imagine a scenario where a provision is held to be constitutional by a judge under a conventional reading of fundamental rights. However, subsequently, the court develops a new standard of judicial review (e.g., constitutional morality), and the provision is put to challenge in line with this new standard. Would the judge be formally constrained in this case under the rule?
If so, the recusal rule loses all substance, as the judge could not have foreseen the application of a new standard – he is, in that sense, not biased (nor appears to be) in his original decision. Neither was his original judgment sub silentio on the applicable law. Alternatively, if he is not constrained, then the rule turns onerous, if not impossible. This is because, in that case, even non-interpretative, bottom-line questions of whether a judge found a provision constitutional or not would require one to predict if any prospective arguments that are yet to be made in the case have been dealt with by the judge. Needless to say, recusals after the lapse of arguments are hardly economical of judicial time.
The Informal Modes
Sixthly, while I agree that even when dealing with scholarly questions, judges are supposed to be cautious, and if necessary, reticent, when in office, the recusal rule raises more grey areas about how judges deal with such treatments. For e.g., when Justice Nariman explains his understanding of how the basic features of Constitution are identified, does that warrant recusal in cases where such methodological choices have direct and tangible second-order effects on the merits?
While Dalmia will presumably claim here that the issue in question has not specifically been dealt with (like the freedom to internet and article 19), rendering Nariman J. safe, this is simply voluntary nescience. To illustrate by example, if Nariman J. says that the Preamble’s text is sufficient to identify a basic feature (a methodological belief), then those who wish to contest that ‘fraternity’ is not a basic feature (a substantive question of law) have already lost the argument, as fraternity is not explicitly found elsewhere in the Constitution, but has been approved by Nariman J.’s methodology nonetheless.
While all of these lectures would be perfectly permissible under the 1997 Restatement of Values of Judicial Life, and otherwise not expressive of merits of a particular subject, they would be the same as displaying an effective intellectual bias in particular cases. Formalism, therefore, cannot be chosen selective.
Seventhly, and relatedly, this rule will acquire a dubious nature when one considers interpretative choices to also be a type of intellectual bias. Judges may hold strong on interpretative positions. For e.g., Justice Bhagwati’s strong willed purposivism contrasts with Justice Subba Rao’s austere textualism.
If judges express their opinion, either judicially or academically on how to interpret a particular statute, would that preclude interpretation of different provisions of the same statute, or a different statute altogether when the previous decision effectively shuts the seal on how this case will end up being decided? Again, the claim that the specific issue has not been dealt with is not satisfactory to the question of ‘bias’. Ironically, the foremost response to the sixth and seventh objections that may be offered is that one expects that the judges may change their minds – a refrain long muddied priorly.
Lastly, the chilling effect of this rule is severe when applied retrospectively to judges’ work before they hold office. This is also why the invoking the Restatement with reference to scholarship is inappropriate. All of the principles that are cited by Dalmia pertain to a judge’s conduct after the acquisition of office. On the other hand, scholarship or academic material written prior to judicial elevation, are not precluded by the Restatement.[1] To compel judges to recuse from academic opinions expressed, sometimes decades priorly, would have three deleterious consequences.
To begin with, it would deter scholars and academics from entering into the judiciary, a sure handicap in a country where consistent calls are made to elevate ‘distinguished jurists’ as judges under article 124(3)(c) to deaf ears. Secondly, it would have a paradoxical effect of excluding judges from dealing with their subjects of expertise. Lastly, it will prevent judicial aspirants from trying their hand at scholarship, for fear that it may come to prevent their elevation in the first place, and contribution to the jurisprudence they care about, even if that come to pass.
A Brief Word on Bias
By now, much ink has been spilt by both me and my correspondent on the ancillaries surrounding a possible ‘solution’ to intellectual bias. In my response, I had briefly questioned the concept of intellectual bias itself, preferring the term ‘intellectual predisposition’ instead. I made this distinction as a criticism to Dalmia’s indiscriminate use of the former. As I conclude my treatment, I shall briefly provide a few observations of my own on this distinction.
Dalmia’s attempts at articulating a standard of biasness, such as with Panigrahi as ‘staunch, rigid and fixated opinions’ (pg. 11) is largely unworkable due to its vague nature. There are serious epistemic issues with how to assess this, especially when justified on appearance grounds. Dalmia’s rejoinder has illuminated this aspect, which I have dealt with here. In any event, there is a need to ensure that judicial philosophies are not understood as a form of bias. In their own words, ‘expression of preconceptions and observations about general questions of policy and law, which must not entail judicial disqualifications’.[2]
Ultimately, the question of which model of countering bias would work best is an secondary concern. It is plausible that some institutional safeguards may eventually allow such screening. However, is this materially desirable that expressions of legal opinions are tantamount to bias? Dalmia states that ‘irrespective of the end […] the means are important’. I emphatically state that to infer ‘bias’ with such a feeble standard of satisfaction is destructive of judicial independence. And the protection of those means is far more important than the ends that the recusal rule, in any form, may achieve.
Conclusion
Whereas the previous part of this reply has argued against the reference rule; this part has made two classes of objections to the new recusal rule. First, that when taken via formal modes, it is doctrinally incoherent and has greater compliance costs than bias-elimination benefits. And second, that it is unduly onerous when considered informally, for its boundaries are seamless and unendingly ambiguous.
In his rejoinder, Dalmia questions my ‘naïve belief in the Indian justice system’. It is undeniable that India’s judicial past has been plagued with corruption, and perhaps little faith can be had in its practice. But when acting as designers of institutional technology, we must act responsibly, formally, and generate expectation: of fairness, in principle and practice. To err in this matter, even if aiming to eliminate a cryptic bias, is simply achieving it by other means.
At dawn’s end, recusals are a self-regulatory mechanism vested in courts to prevent prejudice. Dalmia’s most grievous error lies in framing intellectual predispositions as a form of bias. Beyond all ancillaries, such framing places a stigmatising effect on differences and dissent within judicial quarters. And for all the shortfalls of the Indian judiciary, that is one risk we should not take.
Endnotes
[1] I suspect Dalmia is aware of this distinction, and may have simply misunderstood my two questions to be limited to when judges write or speak extracurially, but not when they have done so before taking on judicial robes. If this is so, I take responsibility for the ambiguity in my original response. Notwithstanding, Dalmia must either agree with the application of the recusal rule to scholarship before taking office, in which case the arguments advanced stand; or he must limit the application of the recusal rule to scholarship after judicial office is taken, which would in turn raise reasonable classification concerns as to how intellectual bias differs in both scenarios so as to justify different treatment.
[2] Id. The authors made reference to State of W. B. v. Shivananda Pathak, (1998) 5 SCC 513 in support of this proposition (emphasis mine).
Click here for Part 1 of the series.
Sarthak Sahoo is a law student at the Rajiv Gandhi National University of Law, Punjab. The author would like to thank Kusha Grover and Shagnik Mukherjea for comments on the original draft.
Ed Note: This post was edited by Jeetendra Vishwakarma and published by Abhishek Sanjay from the Student Editorial Team.
