On March 20, Chief Justice of India Surya Kant 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. The 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, superseding the Supreme Court’s 2023 interim arrangement. “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. While the order directs the Registry to list the case before a Bench to be earmarked separately by the Chief Justice of India, his oral remarks while hearing the case, Dr. Jaya Thakur v. Union of India (2024), raises questions that will linger long after the Bench is constituted. CJI Surya Kant is the second CJI to recuse from hearing the case. Earlier, CJI Sanjiv Khanna recused from hearing the same case in 2024.

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The doctrine and its foundations

Recusal flows from one of the oldest maxims of natural justice: nemo judex in causa sua — no one shall be a judge in their own cause. In its modern form, the Supreme Court has moved from strict automatic disqualification for pecuniary interest, as in Manak Lal v. Dr. Prem Chand (1957), toward a standard of real likelihood of bias. Ranjit Thakur v. Union of India (1987) refined this further, holding that a reasonable apprehension of bias, and not merely a remote possibility, justifies withdrawal.

Every court to have addressed the question has held that the decision to recuse, rests on the judge’s own conscience. No party can compel it, and no statute in India codifies the standard, unlike in the United States where Section 455 of Title 28 of the United States Code requires a federal judge to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

The NJAC precedent

The most directly relevant Indian precedent cuts the other way. When the validity of the National Judicial Appointments Commission Act, 2014 was before a five-judge Constitution Bench in 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 what legal systems call 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.

In his concurring opinion, Justice Kurian Joseph added that a judge choosing to recuse bears a constitutional duty of transparency, that indicating reasons for withdrawal is itself part of the oath of office taken under the Third Schedule of the Constitution.

The present case

The structural logic of NJAC 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 then compels 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.

A direction that binds successors

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.

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.

CJI Surya Kant’s decision suggests another 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 need for codification

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 provides a codified objective standard, 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. 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.

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.