Delhi High Court judge Swarana Kanta Sharma on Monday said the mere apprehension that one may not get relief from a court cannot be a grounds for recusal of a judge from a case, as she dismissed the recusal pleas filed by AAP chief Arvind Kejriwal and others in the liquor policy case.
‘Recusal has to step from law, not narrative’
“If this court was to recuse, it would be an act of surrender and a signal that institution including judge and the court can be bent, shaken and changed. Applications seeking recusal are rejected,” she ruled, and further said, “Personal apprehensions have not been able to pass the threshold of the ‘apprehension of bias’. Recusal has to step from law, and not from narrative; and this is a defining moment for the court.”
She gave a number of arguments in her order on why she won’t recuse from case even as Kejriwal expressed “apprehension of bias”.
She emphasised that a judge “cannot abdicate judicial responsibility in the face of allegations”, and that personal attacks on a judge are, in effect, “attacks on the institution itself”.
In this case, she said, the file seeking recusal “did not arrive with evidence but it arrived on my table with aspersions, insinuations and doubts cast on my integrity”.
She added, “Judges are bound by the discipline of their office, and if they bow down to such vilification, it would not only be an attack on the individual judge but on the institution. Today it is this court; tomorrow it will be another court.”
She noted that recusal would lead the public to believe that a judge is inclined towards a particular party or ideology.
“Judicial integrity cannot be put to trial by a litigant. A litigant cannot judge a judge without any material. Urging this court to withdraw solely on the basis of perceived bias and if I would accept this, it would settle a disturbing precedent,” she added.
“Today it is not a dispute between two litigants but between myself and the litigant. Allegations and insinuations though persistent and loud cannot replace the proof required for recusal. In case recusal is allowed, the judicial process will not remain independent but vulnerable to allegations,” she further noted.
On her RSS event attendance
On Kejriwal’s argument that there was apprehension of bias on the ground that the judge had attended four programmes of the Akhil Bharatiya Adhivakta Parishad (ABAP) — an organisation he said is aligned with the RSS and follows a “particular ideology opposed to that of the Aam Aadmi Party (AAP)” — she said ABAP events are professional gatherings of lawyers, not political functions, and noted that several judges have attended such programmes in the past.
The court also observed that the applicant had “selectively” placed records of her participation, stressing that such interactions are part of maintaining a “healthy relationship” between the bench and the bar.
This relationship extends beyond courtrooms and includes informal engagements, which cannot be curtailed based on litigants’ perceptions, the judge said..
Warning against opening the “floodgates” to mistrust, the judge said such arguments could discourage judicial participation in professional forums.
She emphasised that impartiality is presumed in favour of a judge and, while rooted in ethics, cannot be questioned on tenuous grounds.
“The organisation’s functions were not political in nature but consisted of programmes organised by a body of lawyers where professional discussions were held,” she said.
“Judiciary cannot be made to be placed in an ivory tower. Floodgaets of courts cannot be open to plant seeds of mistrust solely on this cases and such would lead to jidegs declining inviaiton of bar bodies and would be forced to withdraw from public disclosure. Impartiality is a presumption in favour of a judge and impartiality is not a legal requirement but an ethical one,” the judge said.
What Kejriwal demanded, and why
The controversy arose as Justice Sharma presided over cases linked to an alleged scam in the Delhi excise (liquor sales) policy.
After a trial court discharged Kejriwal and 22 other accused on February 27 this year — concluding that the CBI’s material did not form a case worth going to trial even — the CBI challenged that order before the High Court, and Justice Sharma, at the first hearing of the CBI’s petition on March 9, stayed the trial court’s direction for departmental proceedings against a CBI officer. She also called some of the trial court’s observations “prima facie misconceived”.
This order was passed, Kejriwal later argued in her court, after hearing the CBI for just five minutes and without once hearing his side.
Earlier, when the case was before the trial court, her bench had rejected bail pleas filed by Kejriwal, his fellow AAP leaders Manish Sisodia and Sanjay Singh, and Telangana politician K Kavitha, as the CBI and Enforcement Directorate built a case.
RSS ‘link’ alleged
The AAP leader, in his petition seeking her recusal, raised several objections against the judge. The most politically charged was that Justice Sharma had attended four events organised by the Akhil Bharatiya Adhivakta Parishad, a lawyers’ body affiliated with the RSS, the ideological parent of the BJP, which is AAP’s political rival and the ruling party at the Centre.
“This case is political,” he told the court directly. When Justice Sharma asked whether he thought she followed that ideology, Kejriwal turned the question back on her: “Do you?” She said she only wanted his contentions to be on the record properly.
In his additional affidavit, Kejriwal alleged a conflict of interest, because Justice Sharma’s son is empanelled as a Group A counsel representing the Centre before the Supreme Court, while her daughter is empanelled as a Group C counsel, also appearing as a pleader for the Centre before the Delhi High Court.
Both are allocated work by a “structure” led by Solicitor General Tushar Mehta, who is arguing the CBI’s case before Justice Sharma, he noted.
Kejriwal had moved for a transfer of the case on March 11. When that was rejected two days later, he, Sisodia, and four others filed recusal pleas for the judge specifically.
A former government tax officer and a social activist before entering politics in 2012, Kejriwal appeared in court to argue the plea himself.
His first argument for why the judge should recuse was that a thorough trial court order — arrived at after a review of 40,000 documents — was effectively overturned in five minutes. He also cited the Supreme Court’s ruling in ‘Ranjit Thakur vs Union of India’, arguing that actual bias need not be proved; a reasonable “apprehension of bias” is sufficient grounds for recusal.
What CBI had said in counter
The CBI firmly opposed the plea with Solicitor General Mehta calling it a “dangerous precedent”. He argued that judges routinely address bar association events regardless of political affiliation.
On her children being government-empanelled lawyers, the agency said they had neither dealt with nor assisted in the excise case in any capacity, and are independent practitioners not attached to any senior advocate.
Justice Sharma reserved her order last week, accepted Kejriwal’s additional affidavit, and scheduled her pronouncement for Monday, April 20, after taking some further documents on record.
In the latest part of his presentation of arguments, Kejriwal this week appeared before the judge through video-conferencing, and urged her to take on record his rejoinder to some written submissions filed by the CBI.
The judge said there is no concept of filing a “rejoinder” to the opposite party’s written submissions, but she would allow Kejriwal to tender his pleadings as written submissions instead, so that he did not feel that he was not heard.
“You say you have respect for me. I have respect for every litigant. The rule of court will not be changed for anyone, so I will treat it as written submissions. I am taking it on record. I am giving the indulgence to Mr Kejriwal,” the judge said.
Argument about her children’s work as lawyers for the central government were not disputed by the CBI, Kejriwal said in his latest filing. “Once these facts are admitted, the prosecution cannot be allowed to evade the legal consequences and all insinuations by the CBI against him are wholly irrelevant,” the former Delhi chief minister has asserted.
“Instead of meeting the substance of the conflict-of-interest plea, the CBI has chosen to resort to speculation, imputation of motives, rhetorical alarmism and scandalous allegations against the applicant, all of which are extraneous to the limited issue that arises for consideration. It is very unfortunate that the CBI is willing to malign the entire judiciary in order to have this matter heard before only one Hon’ble judge,” Kejriwal alleged.
S-G Mehta had earlier urged Justice Sharma to initiate contempt action against Kejriwal and the others for seeking her recusal.
Terming the concerns raised by Kejriwal and others as “apprehensions of an immature mind”, the government lawyer had told the court that it was a matter of “institutional respect”; and that Justice Sharma should not succumb to pressure as her recusal on “unfounded allegations” would set a bad precedent.