By Prof Upendra Baxi
The judicialization of the various presidential orders curtailing a whole lot of autonomy of the Harvard University, now headline news in the United States of America, is likely to move fastrack in the Supreme Court of United States (SCOTUS). We engage only the question of judicial recusal, which is bound to arise as least four justices have been associated with the Harvard University.
JUDICIAL TIES TO HARVARD: A RECUSAL CONUNDRUM
Justice Elena Kagan served as the Dean of Harvard Law School, whereas Justice Neil Gorsuch attended the Harvard Law School. Justice Ketanji Brown Jackson, and Chief Justice John Roberts attended Harvard University both as undergraduate and studied at the Law School. Rarely, at least in the common law orbit, being an alumnus of a university is a ground for a judge for standing down. But we do not know how President Trump’s attorneys may want to argue because everything that the incumbent POTUS (President of the United States) does and says is extraordinary!
TRUMP’S OFFENSIVE: DEFUNDING AND LEGAL ACTION
The POTUS has already asked Harvard to dismantle its diversity, inclusion, and equality programme, and announced a freeze of $2.2 billion in grants and $60 million in contracts to Harvard. It has placed US $9 billion under review by the government which includes $256 million in research support for Harvard plus $8.7 billion in future commitments to the University and several renowned hospitals (like the Mass General, the Dana-Farber Cancer Institute, and Boston Children’s). Further, the Trump administration has proposed to freeze $2.2 billion in grants and $60 million in contracts to Harvard.
THE CIVIL RIGHTS ACT, STUDENT PROTESTS, AND FOREIGN VISA CRACKDOWN
The Trump administration has been critical of Harvard’s handling of student protests related to the Gaza war. It has accused the University of failing to “adequately protect Jewish students on campus from anti-semitic discrimination and harassment, in violation of Title VI of the Civil Rights Act of 1964”, and has already moved in the direction of the foreign students visa cancellation and prohibition.
RESISTANCE FROM HARVARD AND OBAMA
In a scathing response, the University President Alan Garber has categorically stated that the changes pushed by government are “unmoored from the law” and that the “University will not surrender its independence or relinquish its constitutional rights.” The 44th POTUS Barack Obama has caustically condemned these proposed changes and expressed the hope that other universities will follow the lead provided by Harvard. The wisdom of the slew of changes by the POTUS has been questioned by transatlantic communities, and even globally.
APPEARANCE OF BIAS: THE US RECUSAL STANDARD
Assuming that request for recusal is made, particularly on the ground of “appearance of partiality”, are these justices to recuse sua sponte (on their own)? In the US judicial practice, judges recuse themselves (remove themselves from participating in a case) in situations “not only when they are biased”, but when they appear so to “a neutral observer”. Professor Dimitry Ban says, in his magisterial study that this “nominally strict, appearance-based recusal standard… intended to ensure the judge’s impartiality in resolving disputes, to protect the judiciary’s reputation, and to instil public fairness of the courts” does not really work “when the public has already formed its impressions of judicial impartiality”. In this situation, a “judge’s recusal decision may be” too “little and come too late”. Moreover, when “appearances are considered on a case-by-case basis, often by the very judge whose impartiality has been challenged, even the correct non-recusal decision does not always foster an appearance of impartiality”.
THE LEGISLATIVE ROUTE: EX ANTE RECUSAL RULES
To remedy this, he valiantly proposes that “rather than ex post judicial recusal decisions”, legislatures “must set ex ante situations in which recusal must proceed [see his, “Making Appearances Matter: Recusal and the Appearance of Bias”, University of Maine Law Review, 943 (2011)]. He urges us to recall Justice Benjamin Cardozo’s classical observation that: “We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own”. But if this is so, even any ex ante regulatory words will have to be further judicially interpreted by Justices who arrive at a recusal decision!
INDIA’S APPROACH TO RECUSAL: FROM INDIVIDUAL TO INSTITUTIONAL
The situation in India may not appear at the first sight different from that in the United States. Individual justices decide whether to recuse or not, (see, Upendra Baxi, India Legal (October 12, 2010, and May 13,2018). But recently, there is a considered move away from treating recusal as an individual affair of justices towards the court as an institution, which must examine the adverse affects on the integrity of the judicial process as a basic rule of law value. The institutional interest becomes, of course, engaged when there is an allegation of manifest pecuniary bias or any other possibility of conflict of interest. It is doubtful though that a constitutional convention has evolved to the extent of saying that a convention exists authorising counsel to exonerate the judge of any, even pecuniary, bias by stipulating that they have complete faith in a judge (as happened when Justice JC Shah disclosed in the Bank (Nationalization) the “puny” shareholding he had in the affected banks or as Justice SH Kapadia did in Novartis cases. In both, counsels expressed faith in the neutrality and impartiality of the judge.
THE SUBRATA ROY SAHARA PRECEDENT: A TURNING POINT
However, non-recusal was never a matter of lis or constitutionality, till the advent of the decision in Subrata Roy Sahara (2012). There, Justice JS Khehar (and Justice KS Radhakrishnan) confronted the convention with the judicial oath of office under the Third Schedule of the Indian Constitution. Justice Khehar strongly deprecated recusal as the essence of “[C]alculated psychological offensives and mind games” which need “to be strongly repulsed” and recommended a “similar approach to other Courts, when they experience such behaviour”. It was further held: “[…] not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill-will.”
THE NJAC CASE: FEAR OR FAVOUR AND THE DOCTRINE OF NECESSITY
Justice Khehar followed his own logic in the National Judicial Appointment [NJAC case, 2015]: His Lordship scoffed at the very idea that recusal be available at the instance of a litigating party as that violates the judicial oath under the Third Schedule of the Constitution—the “oath to discharge… duties without fear or favour”. Justices J Chelameswar and AK Goel ruled against the argument that judges were possessed with “significant power” of recusal. If accepted, this argument would “render all the Judges of this Court, through institutional bias, disqualified from hearing the present controversy”—not a “result” legally permitted by the “doctrine of necessity”. The invocation of this criminal law doctrine to the constitutional law is not as fanciful as it may sound: after all, if the judicial oath is to have some meaning (if it is not to be an empty signifier), should it not act as a constitutional barrier to recusal behaviour?
TRANSPARENCY, ACCOUNTABILITY, AND JUDICIAL ETHICS
Justice Kurian Joseph additionally urged that “a Judge is required to indicate reasons for his recusal” and to promote transparency and accountability which stems from the “constitutional duty, as reflected in one’s oath”. This would also help to “curb the tendency for forum-shopping”, more so because judicial recusal applications are “gaining frequency”. However, Justice Madan B Lokur disagreed saying that “fresh rules” are needed and “it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench”.
THE CONSCIENCE CLAUSE: A PHILOSOPHICAL DILEMMA
The discourse leads to one central conclusion: recusal is permissible only when there is “real likelihood” of pecuniary bias or of manifest and deep conflicts of interest. In both these situations, when necessary, the brethren may sit on judgment concerning the institutional consequences of individual judicial recusal (or non-recusal) conduct.
The only problematic aspect is recusal based on “conscience”. The Indian Constitution ordains that a judge should be a citizen of India and every citizen in entitled to the primary right of freedom of conscience, subject to public order, health, and “morality”. Is institutional integrity better served by allowing individual judicial conscience to prevail over judicial oath or by a resignation from judicial office? Can the judicial conscience be fettered by the constitutional duty to adjudge? Should the brethren or members of the Bar assisting them, be allowed to override individual judicial conscience? What may be said to be the ethical obligations of the Bar in this regard? Finally, would a rule made by the Court and/or the legislature ever solve the issue of conscientious recusal? Or should we simply affirm with Eugen Ehrlich (a founder of sociology of modern law) that the “best guarantee of justice lies in the personality of the Judge”?
CONCLUSION: THE INDIAN MODEL AND THE FUTURE OF RECUSAL IN SCOTUS
The Indian approach promises a well-considered move forward for recusal/non-recusal problem than simply leaving the decision for individual justices. The latter approach may leave the SCOTUS, in the unusual situation with only seven justices if all justices involved were to recuse! Besides, the Indian and SCOTUS judicial oaths are similar in most respects, despite some changes made to it in 1990. Should the judicial oath in the USA not be read closely to reorient the law and practice of recusal in American development?
—The writer is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer