A lot many articles have been written in the past week or so on the developments in the Supreme Court of India with regard to the petition by CJAR seeking the constitution of an SIT to monitor an investigation into a medical college scam. Two excellent articles that must be read in this regard are here and here.
In this present post, I would like to discuss a little about the theoretical grounds for the ‘bias’ that is being feared, due to which the recusal of the CJI was being sought in the petition.
Extrajudicial source doctrine
In many countries, and especially so in the United States, the doctrine of ‘extrajudicial source’ is applied whenever a situation arises where the recusal of a judge is sought for. The principle generally followed is that the judge does recuse from a matter if the possibility of bias arises from an ‘extrajudicial source’.
The concept of ‘extrajudicial source’ has been described well in the matter of Johnson v Trueblood 629 F.2d 287 in United States Court of Appeals, Third Circuit. It says
“Extrajudicial bias refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings”
The origin of the doctrine itself can be traced to Berger vs United States 255 US 22 (1921).
According to this doctrine judges may be disqualified from a case only if the possibility of their bias arises from an extrajudicial source.
In the present case, the situation is not that the matter filed by CJAR was either heard earlier by the judges whose recusal was being sought. Nor is it the case that either the same or related matter was heard earlier and an appeal was being made. In either of such situations, the test of extrajudicial source of bias fails and there would have been no grounds for seeking recusal.
However, in the present case, the possibility of bias is being derived from an FIR filed by the CBI, in which there is a mention about the offenders (named in the FIR) having declared that they are working on “getting the matter favorably settled” in the highest court of the land. Given this fact, the recusal of some of the judges who were hearing the medical cases matter was being sought.
Hence the grounds for fearing bias, in the present case, clearly is derived from an extrajudicial source.
In the present case, both the 5-judge Constitutional Bench that annulled the orders of Justice Chelameshwar and Justice Nazeer, and the subsequent 3-judge bench that dismissed the petition placed far too much reliance on the observations of the SC in the ‘D.C Saxena vs Hon’ble CJI” matter.
In the cited case, the matter of the petitioner was dismissed summarily, following which he filed a writ petition against the CJI alleging bias and sought various remedies including removal of the CJI. The petitioner demanded, during the pendency of his petition, that the CJI not constitute any benches nor allocate work.
It was in response to this absurd demand that the observations of the Constitutional powers of the CJI were made. And clearly, in that matter, the source of the bias was NOT extrajudicial, since it was clearly connected to the dismissed matter of the petitioner.
However, in the present case, like highlighted earlier, the source of the bias that was feared was clearly from an altogether different matter – the CBI FIR and the pointers therein to the pending case before a bench of the SC.
Applicability for administrative matters
This question has been explained very well by Sri Gautam Bhatia in the article cited above. Hence I will not delve into this in any detail. Clearly, there is sufficient ground, due to the setup of the Supreme Court and the powers of the CJI, for fearing possibility of bias even on the administrative side of matters. Hence the request was made.
Such matters have been encountered earlier on administrative issues on the executive side. The general inclination seems to be towards treating administrative and judicial decisions on par in such matters. For e.g. in ‘Administrative Law’, Wade and Forsyth state
“..this distinction has long been a vexed issue but submit that it is now clear that in accordance with general principle, the same approach to bias should be adopted to
both administrative and judicial decisions”
While the reference in the above cited work is intended towards administrative matter bias in executive and other organs of the Government, there is no reason to deny its applicability in the present case, for the administrative side of things in the SC.
Reasonable Observer Test
In many countries, a ‘reasonable observer’ test is applied to determine whether bias that is feared has a genuine basis or not. If this particular test is passed, then there is sufficient ground to consider that the possibility of bias exists.
The basic premise here is that the reasons being quoted for fearing bias must appear to be valid to a ‘reasonable observer’. Many countries have their own definitions of who is a ‘reasonable observer’.
In Australian jurisprudence, the test is defined thus
“whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”
According to Canadian law, the bias must be apprehended by
“the reasonable, informed, practical and realistic person who considers the matter in some detail”
Irish case law mandates that
“(a) reasonable and fair-minded observer must apprehend bias on the part of the
From these definitions, the concept of a reasonable observer becomes quite evident.
In the present case, to arrive at a decision whether a ‘reasonable observer’ can apprehend bias, we need to look at some of the statements in the CBI FIR.
“…who assured to get the matter settled in the Apex Court through their contacts…”
“…and they further engaged….(persons named)….for getting the matter settled in the Apex Court”
“However he demanded huge gratification for inducing the public servants by corrupt and illegal means…”
The above statements seem to have been the basis for the request for recusal made as part of the petition. The question is – does it cause grounds for fearing bias to any ‘reasonable observer’?
Again, one must remember that it is sufficient for a *possibility* of bias to be apprehended in order to request a recusal. Obviously whether or not there is any truth at all in these allegations is a totally different matter.