Hon’ble Justice L. Nageswara Rao in State of Tamil Nadu v. G. Hemalathaa, Civil Appeal No. 6669 of 2019 quoted Chief Justice John Roberts in Caperton v. A.T. Massey, 556 U.S. 868 (2009).

“Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: ‘hard cases make bad law’.”

Caperton involved a dispute in West Virginia. Hugh Caperton had won a $50 Million Judgment against A.T. Massey Coal Company. After the Judgment but before the Appeal to the Supreme Court of Appeals of West Virginia, West Virginia held its 2004 Judicial Elections. Don Blankenship, Massey’s Chief Executive, spent lavishly on his preferred candidate, Brent Benjamin, who stood elected. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to Recuse himself from the Appeal; cast the Tie-Breaking Vote in the Court’s 3-2 Judgment to throw out the $50 Million Award against Blankenship’s Company.

Supreme Court of the United States was divided on the issue. Justice Anthony Kennedy in the Majority Opinion, which was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, wrote, when the probability of actual bias on the part of the Judge is too high to be constitutionally tolerable, there is a serious, objective risk of actual bias. Roberts, CJ respectfully dissented and effectively argued, the Majority Opinion would open the floodgates for a wide variety of allegations against Judges. He hoped he was wrong.

Many years ago, Supreme Court of India had commented, the principle of ‘real likelihood of bias’ has taken a tilt to ‘real danger of bias’ and ‘suspicion of bias’. We may, in future, deal with gradation of ‘probabilities of actual bias’. Should the inability of the Judge be evaluated by the Judge himself? Recusals have no definite rules; different humans in similar situations act differently.

Hon’ble Justice L. Nageswara Rao in State of Tamil Nadu v. G. Hemalathaa, Civil Appeal No. 6669 of 2019 wasn’t concerned with Recusals. G. Hemalathaa had ‘underlined her answer sheet with pencil at several places’ in a written examination conducted by Tamil Nadu Public Service Commission. Instruction 22 (1)(II) prohibited candidates from using a pencil for any purpose. High Court had accepted, the ‘underlining’ was done ‘unwittingly and inadvertently’, with no advantage gained from ‘such marking’. Supreme Court of India held, “strict adherence to the terms and conditions of the Instructions is of paramount importance; any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law.” It appears, the legal aphorism could have been avoided on humanitarian grounds, if not on constitutionally and morally intolerable grounds as in Caperton. Exceptions in exceptional cases only prove the rule and do not violate the same.