The Duty To Decide

Widespread media reports concerning the litigation of Indian Forest Service officer and Magsaysay awardee Sanjiv Chaturvedi point to an extraordinary sequence of judicial recusals extending over a decade. Sixteen judges and members across the Supreme Court, the High Courts of Uttarakhand and Allahabad, several benches of the Central Administrative Tribunal and courts of Additional Chief Judicial Magistrates at Nainital and Shimla have withdrawn from hearing his petitions. Each withdrawal, considered alone, might appear an act of prudence. But taken together, they reveal a deeper institutional unease. At what point does the duty to appear impartial yield to the greater duty to decide?

I. The constitutional duty

Every judge swears to perform the duties of office “without fear or favour, affection or ill-will.” That oath presupposes decision-making as a constitutional obligation, not an act of discretion. Justice J.S. Khehar, when asked to recuse from the NJAC Bench, refused. In his words, “A Judge may recuse for legitimate reasons. But recusal cannot be made to appease the perceptions of a party… To withdraw without sufficient cause would be an abdication of duty.” [(2016) 5 SCC 1, paras 24-26.] The independence of the judiciary is realised not only by abstention but also through adjudication.

The judicial function is not discretionary; it is a trust under the Constitution. To decline jurisdiction without compelling cause risks breaching not only procedural expectation but the citizen's rights under Articles 14 and 21 – equality before the law and the right to a fair hearing.

The common law starts from the presumption of impartiality. As Okpaluba and Maloka observe, “There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal must overcome.”

That principle – the duty to sit – defines the boundary between conscience and convenience. As the Ontario Court of Appeal held in