When the Chief Justice Steps Away, Recusal, Conflict of Interest, and the Unfinished Business of Judicial Accountability
On March 20, Chief Justice of India Surya Kant did something that, in itself, is not unusual for a judge. He stepped away from hearing a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. What made his recusal significant was not the act itself, but the reasons he gave, the directions he issued, and the questions he left unanswered. “I will be accused of conflict of interest,” the CJI remarked before directing that the case be listed on April 7 before a bench comprising judges not in the line of succession to the office of the Chief Justice. His oral remarks, while hearing the case Dr. Jaya Thakur v. Union of India, have raised questions that will linger long after the new bench is constituted. CJI Surya Kant is the second Chief Justice to recuse from this case. Earlier, CJI Sanjiv Khanna recused from hearing the same case in 2024.
The case at the heart of this controversy is a constitutional challenge to the CEC and ECs Appointment Act, 2023. This legislation replaced the Chief Justice of India with a Union Minister on the selection panel for appointing the Chief Election Commissioner and other Election Commissioners, effectively superseding the Supreme Court’s own 2023 interim arrangement that had placed the CJI on the panel. The law fundamentally alters the balance of power between the judiciary and the executive in the appointment of the country’s top election officials. It is, therefore, a case of immense constitutional significance, one that directly affects the institutional interests of the judiciary.
This is precisely the problem. The CJI’s recusal was based on the principle of nemo judex in causa sua—no one shall be a judge in their own cause. The doctrine of recusal flows from one of the oldest maxims of natural justice. In its modern form, the Supreme Court has moved from strict automatic disqualification for pecuniary interest toward a standard of “real likelihood of bias.” The landmark case of Ranjit Thakur v. Union of India (1987) held that a reasonable apprehension of bias, and not merely a remote possibility, justifies withdrawal. The decision to recuse, every court to address the question has held, rests on the judge’s own conscience. No party can compel it, and no statute in India codifies the standard.
The most directly relevant Indian precedent, however, cuts the other way. When the validity of the National Judicial Appointments Commission Act, 2014 was before a five-judge Constitution Bench in the Supreme Court Advocates-on-Record Association v. Union of India (2015), recusal was sought against Justice J.S. Khehar on the ground that he would eventually become Chief Justice and therefore had an institutional stake in whether the Collegium or the NJAC governed future appointments. Justice Khehar refused. His reasoning rested on two pillars. First, the conflict infected every judge on the bench, since all would eventually be part of the Collegium if the petitioners succeeded, or subject to the NJAC if they failed. Second, and more fundamentally, he invoked the doctrine of necessity: when the only available forum is also the forum that faces a disqualifying conflict, the conflict must yield to institutional obligation. “If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent,” he held.
The structural logic of the NJAC case applies equally to the CEC law challenge, and arguably with less force for recusal. Every sitting judge of the Supreme Court is a potential future Chief Justice under the seniority convention established by the Second Judges Case. The conflict of interest that moved Chief Justice Surya Kant to step aside, therefore, afflicts every member of the court simultaneously. The doctrine of necessity would then compel the conclusion that the Supreme Court must hear the case regardless, since no alternative court of equivalent jurisdiction exists, while acknowledging the conflict openly, as the NJAC Bench did. The CJI’s recusal, viewed through this lens, represents a departure from a principle the court itself laid down a decade ago.
More troubling than the recusal itself is the accompanying oral direction (as reported by the media, though the order uploaded is silent on this). By specifying that the replacement bench must exclude judges in line to become Chief Justice, the CJI has made a prospective determination about the disqualification obligations of judges who have not yet considered the question for themselves. Recusal is an act of individual judicial conscience. It cannot be mandated in advance by a predecessor. To pre-assign a conflict of interest to judges who have not adjudicated whether one exists is to collapse the distinction between institutional incapacity and personal disqualification. Each judge must decide for themselves whether the appearance of bias requires them to step aside. A Chief Justice, even as Master of the Roster, cannot make that determination for them.
There is a further problem the direction does not account for: the office of the Chief Justice has occasionally passed to judges outside the expected seniority line due to the resignation, health, or death of those ahead of them. A judge constituted on the replacement bench as someone outside the line of succession could, through such contingency, subsequently reach the office of Chief Justice. The prophylactic rule, designed to eliminate the appearance of self-interest, cannot account for the accidents of judicial mortality. The only way to avoid this uncertainty entirely would be to exclude all judges, which is impossible, or to exclude none, which is what the doctrine of necessity would recommend.
CJI Surya Kant’s decision also suggests a deeper incongruity. If the CJI’s recusal of himself and the other judges who are in line to become CJI in the future is justified, can he, as Master of the Roster, decide which of the other judges can hear this case, given that the order authorises him to earmark the bench? In the recent debate on the no-confidence motion against Lok Sabha Speaker Om Birla, many members from the Opposition queried whether he could choose the person who would preside over the House during the proceedings, even while choosing to recuse himself. The answer from the government—that the Speaker’s post does not envisage a vacancy in office—may be accurate, but it still fails to satisfy the doubts on conflict of interest which led to the decision to recuse in the first place. The parallel is instructive: a person who recuses themselves cannot then choose their successor. To do so is to retain control even while formally stepping aside.
India has no statute governing judicial recusal, no binding code of conduct enforceable against Supreme Court judges, and no mechanism to review a recusal decision once made. The American experience illustrates both the value of clear rules and their limits without an external review mechanism: Section 455 of Title 28 of the United States Code provides a codified objective standard—requiring a federal judge to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned—but at the apex level it remains entirely self-enforced.
The CEC law dispute, in which two successive Chief Justices have now recused from the same case, underscores the urgency of reform. When the question of who appoints the guardians of elections is left to a bench constituted by informal direction rather than principled rule, the deficit is institutional as much as it is individual. The public is left to wonder: is the judiciary avoiding the case because it is too politically sensitive, or because it genuinely cannot find a bench free from the appearance of bias? And if the latter, does that not suggest a fundamental flaw in the way the judiciary is structured?
India’s constitutional framework is well-served by judges who exercise their discretion with care. It would be better served still by a framework that transforms that discretion into obligation. A statute governing recusal, modelled on the American experience but adapted to Indian conditions, would provide clear, predictable rules that would protect both judicial independence and public confidence. It would ensure that recusal decisions are not left to the shifting conscience of individual judges, but are governed by a uniform standard that applies to all. Until such a framework exists, the recusal of Chief Justices from cases that touch on the institutional interests of the judiciary will remain a source of confusion, not clarity. And the deeper question—whether the judiciary can adjudicate on matters that affect its own composition and powers—will remain unanswered.
Questions and Answers
Q1: What is the CEC and ECs Appointment Act, 2023, and why is it constitutionally significant?
A1: The Act replaced the Chief Justice of India with a Union Minister on the selection panel for appointing the Chief Election Commissioner and other Election Commissioners. This superseded the Supreme Court’s 2023 interim arrangement that had placed the CJI on the panel. The case challenges this law, which directly affects the balance of power between the judiciary and the executive.
Q2: What was the NJAC precedent, and why does it argue against recusal in this case?
A2: In the 2015 NJAC case, Justice J.S. Khehar refused to recuse despite the argument that he had an institutional stake in the outcome. He reasoned that the conflict infected every judge on the bench, and invoked the doctrine of necessity: when the only available forum is also the forum that faces a conflict, the conflict must yield to institutional obligation. This precedent suggests the current bench should also hear the case.
Q3: Why is the CJI’s oral direction to exclude judges in line to become Chief Justice considered problematic?
A3: Recusal is an act of individual judicial conscience. By specifying that the replacement bench must exclude judges in line for the CJI position, the CJI has made a prospective determination about the disqualification obligations of judges who have not yet considered the question for themselves. A Chief Justice cannot pre-assign a conflict of interest to judges who have not adjudicated whether one exists.
Q4: What does the article identify as the need for codification in judicial recusal?
A4: India has no statute governing judicial recusal, no binding code of conduct enforceable against Supreme Court judges, and no mechanism to review a recusal decision once made. The article argues that a statute modelled on the US system (Section 455, which requires disqualification when impartiality might reasonably be questioned) would provide clear, predictable rules and protect both judicial independence and public confidence.
Q5: What parallel does the article draw between the CJI’s recusal and the recent no-confidence motion against the Lok Sabha Speaker?
A5: The article draws a parallel to the debate on the no-confidence motion against Speaker Om Birla. Opposition members questioned whether a Speaker who recuses themselves from presiding can then choose their successor. The article argues that a person who recuses themselves cannot then choose their successor—to do so is to retain control even while formally stepping aside. The same principle applies to a Chief Justice who recuses but then directs which judges will hear the case.
