Recently, in the month of April 2026, the Hon’ble Delhi High Court rejected the application seeking recusal of the Hon’ble Dr. Justice Swarana Kanta Sharma from hearing the liquor policy case filed by the former Chief Minister of Delhi, Mr. Arvind Kejriwal, and other accused. The aforementioned recusal was significant and garnered public attention. In this context, it is important to understand the law regarding recusal. This article will explain what recusal means and the circumstances under which courts can grant it. This article focuses on the grounds for seeking recusals.

Recusal is change of a judge or prosecutor voluntarily or otherwise, from a legal case due to a conflict of interest or for any reason by which he cannot fairly involve in the proceedings of the case. For example, a prosecutor stepping down from offending a party where in another case he is acting for him. There are various grounds on which recusals are sought the most calling among them are conflict of interest, bias, impartiality, judicial ethics etc. It is the fundamental duty of the judge to hear every matter placed before him/her without fear or favour and a judge must never recuse himself on the asking of a litigating party, unless justified.  

Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled Judicial Recusal[1] traced out principles on the law of recusal as developed in England in the following words:

“The central feature of the early English common law on recusal was both simple and highly constrained: a Judge could only be disqualified for a direct pecuniary interest. What would today be termed ‘bias’, which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of Judges, although it was not completely dismissed in relation to jurors. This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a Judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party's advocate.” He also pointed out that in contrast in the United States of America; the subject is covered by legislation.[2]

It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge.  It all started with a Latin maxim nemo judex in re sua which means literally that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said:

“If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deals equally between them. For without that, the controversies of men cannot be determined but by war. He, therefore, that is partial in judgment doth what in him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war.”[3]

Dimes v. Grand Junction Canal[4] is one of the earliest cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the matter. Lord Chancellor Cottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour of the defendant Company. A year later, Dimes discovered that Lord Chancellor Cottenham had shares in the defendant Company. He petitioned the Queen for her intervention. The House of Lords dismissed the appeal of Dimes on the ground that setting aside of the order of the Lord Chancellor would still leave the order of the Vice-Chancellor intact as Lord Chancellor had merely affirmed the order of the Vice-Chancellor. However, the House of Lords held that participation of Lord Cottenham in the adjudicatory process was not justified. Though Lord Campbell observed:[5]

“… No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a Judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. … This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.”[6]

The next landmark case on the question of “bias” is R. v. Gough[7], Gough was convicted for an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the trial court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the trial court that one of the jurors was a neighbour of the convict. The convict appealed to the Court of Appeal unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibility of bias on her part and therefore the conviction is unsustainable. The Court of Appeal noticed that there are two lines of authority propounding two different tests for determining disqualification of a Judge on the ground of bias:

(1) “real danger” test; and

(2) “reasonable suspicion” test.

The Court of Appeal confirmed the conviction by applying the “real danger” test.[8]

Lord Wilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson: Pinochet case[9]:

“The fundamental principle is that a man may not be a Judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First, it may be applied literally: if a Judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a Judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a Judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be Judge in his own cause, since the Judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”

In the famous case of Supreme Court Advocates-on-Record Assn. (Recusal Matter) v. Union of India[10] the following principles were laid down by the hon’ble supreme court regarding Judicial Recusal:

If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case.

In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension” of bias.

The Pinochet case[11] added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.

In the recent case of CBI v. Kuldeep Singh & Ors[12] Hon’ble Justice Swarana Kanta Sharma of the Delhi High Court observed that merely because her children are central government panel counsel, it cannot be presumed that she carries any bias against Kejriwal. The Hon’ble Dr. Justice Swarna Kanta Sharma added that a politician cannot be permitted to judge judicial competence by observing that:

"The competence of a judge is decided by the higher court, not the litigant...a politician cannot be permitted to cross the boundary and cannot judge judicial competence...A litigant may not always be successful and only higher court can determine whether judgment is contrary or one sided. A judgment of district court can be upheld by HC and same thing for HC which will be seen by SC. General unease of litigant that this court may not grant relief, that can't be a ground to alleged bias against the judge."

The principle of nemo judex in causa sua that no one should be a judge in their own cause forms the bedrock of judicial impartiality in every civilized legal system. Recusal is not merely a procedural formality, but a vital safeguard to uphold public confidence and the integrity of the judiciary. While financial interest remains an automatic ground for disqualification, other forms of potential bias require careful judicial scrutiny, weighing the genuine possibility or reasonable apprehension of partiality. As seen in both Indian and international jurisprudence, recusal should not be wielded as a tool by litigants to select or reject judges at will. Instead, it is a solemn responsibility, guided by law and judicial conscience, ensuring that justice is not only done but is seen to be done.