Konark Pratap Gupta and Kartik Sharma ,
Judicial Recusal in India: A Comparative Study With U.K And U.S.A,
4 (6) IJLMH Page 848 - 875 (2021), DOI: https://doij.org/10.10000/IJLMH.112339
The paper here will try to adopt the Functionalist approach of Comparative Law in understanding the how Indian process of Recusal is insufficient in dealing with the issue of judicial impartibility and accountability. And how the legal framework followed by USA and UK can work as a guiding light to deal with the issue of Judicial Recusal in India. The way the recusal matter is resolved in India in the recent past, it is evident that the idea of transparency and accountability of the judiciary remains only in theory and not in practice. The “principle of nemo judex in causa sua” acknowledged by judges themselves in numerous cases have been overruled by judges in deciding the recusal matters. The Research basically will revolve around the following issues: -Whether there exists a structured legal framework to regulate Judicial Recusal for Higher Judiciary in India. Whether there is need to have a specific codified law to regulate Judicial Recusal in Higher Judiciary in India. Whether law related to judicial recusal practiced in USA and UK differ from what is being practiced in India. Whether the Legal framework of Judicial Recusal practiced in UK and USA can be applied to Indian legal system in the light of Indian Constitutional governance. Whether legislative enactment to regulate recusal for Higher Judiciary will amount to encroachment on independence of Judiciary in India.
In the light of above issues, the Research will dwell into international trend of Judicial Recusal specifically focusing U.K. and U.S.A. and will provide the legal mechanism for legal reform for such process in India.
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