Setback for Kejriwal after Delhi HC judge Justice Swarana Kanta Sharma refuses to recuse in excise policy case

E-PaperSubscribeSubscribeEnjoy unlimited accessSubscribe Now! Get features like Delhi high court judge justice Swarana Kanta Sharma on Monday dismissed applications filed by former chief minister Arvind Kejriwal, Aam Aadmi Party leader Manish Sisodia and others seeking her recusal from hearing the Central Bureau of Investigation’s (CBI’s) appeal against a trial court order discharging them in the Delhi excise policy case. Kejriwal had argued himself in the petition asking justice Sharma to recuse (ANI)In a judgment delivered over more than an hour, justice Sharma observed that a mere apprehension of not receiving relief cannot justify recusal, as it risked allowing litigants to influence the adjudicatory process. She held that there was no “demonstrable cause” for recusal, warning that stepping aside on the basis of perceived bias would set a disturbing precedent. “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. A recusal would also lead the public to believe that judges are aligned to a particular political party or ideology, to their own commands and to remain neutral adjudicators,” the court said. Also Read | ‘Defining moment’: Delhi HC judge Swarana Kanta Sharma refuses to recuse in Kejriwal liquor policy case “In case this court withdraws from this case in the absence of any demonstrable cause, as is required under the law of recusal, it would be attaching weight to allegations which carry none. If I were to accept these applications, it would set up a troubling precedent,” the court added. Kejriwal had argued in the petition asking justice Sharma to recuse. On April 16, the former CM had contended that the judge’s children were empanelled with the Centre and are allocated cases by Solicitor General (SG) Tushar Mehta, who was contesting the appeal on behalf of the agency. But on Monday, justice Sharma dismissed the allegations, stating that a judge cannot abdicate responsibility in the face of allegations. She added that the application lacked evidence and was instead based on aspersions and insinuations casting doubt on her integrity. “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. Allegations and insinuations, though persistent and loud, can never take the place of the proof required in law for seeking recusal. If recusal on such grounds is accepted, it would risk the adjudicated process being shaped by the preference or discomfort of a litigant, and in that case it would not be justice administered, it will be justice managed. This path is not permitted by our Constitution,” the judge noted. Following the verdict, the Bharatiya Janata Party (BJP) attacked Kejriwal, alleging that the former chief minister tried to “cast aspersions on the judicial process and question the impartiality of a sitting High Court judge”. “When individuals who have held high public office resort to such conduct, it risks eroding public confidence in the justice system,” chief minister Rekha Gupta said. AAP, meanwhile, expressed dissatisfaction over the decision. “Kejriwal and his colleagues, who were discharged, told the court that they had a reasonable apprehension that they would not receive justice from this court. Arvind Kejriwal listed 10 points, stating the main reasons for this apprehension. The court declared that all these apprehensions were legally untenable,” said AAP Delhi unit chief Saurabh Bharadwaj. On February 27, the trial court discharged Kejriwal, Sisodia and 21 others, holding that CBI’s material did not even disclose a prima facie case, prompting the agency to challenge the order before the high court. On March 9, justice Sharma stayed the trial court’s direction for departmental action against a CBI officer, calling the remarks prima facie misconceived, and deferred ED proceedings. On March 11, Kejriwal sought a transfer of the case to another judge, which was rejected on March 13. He, along with Sisodia and four others, then filed an application before the judge’s court seeking her recusal. In her verdict, the judge rejected Kejriwal’s apprehension of bias based on her attendance at events organised by the Akhil Bharatiya Adhivakta Parishad (ABAP), which he had alleged followed an ideology opposed to the AAP. She clarified that participating in such events as a judge whether to deliver lectures or engage with members of the legal fraternity cannot be construed as indicating any political association. She emphasised that no litigant can be allowed to weaken the “sacred” relationship between the bar and the bench, which stands above politics. The judiciary, she added, cannot be placed in an ivory tower or expected to remain completely cut off from society and the legal community. “This court is of the firm opinion that no litigant can be permitted to sever or weaken the relationship between the bar and the bench which is sacred and stands above the politics of any level. The judiciary cannot be placed in the ivory tower, and expected to leave a life of complete seclusion, cut off from the society organization, and even the bar” she said. Addressing the AAP chief’s contention of a conflict of interest arising from her children being on a government panel and receiving work from a law officer in the case, the judge held that the mere empanelment of a judge’s relatives is insufficient to establish bias. A litigant must demonstrate a clear nexus, showing proximity, relevance, and impact on the present case or the court’s decision-making, which she held Kejriwal had failed to establish. “Merely because a judge takes an oath of office, the family does not take an oath that they will not enter this profession or do well in it. The spouses, siblings and children of a large number of judges may be in the same profession. If the children of a judge, such as in the present case, were born to a judge, one to her when she was a judicial magistrate herself, and chose to walk the same path, decide to pursue the same profession, that circumstance cannot be exploited by any one,” she said. She added, “A litigant cannot dictate how the children or family members of a judge are to live their lives whether they must rise through their own struggles and hard work, or whether they should be prevented from doing so in the absence of any proof beyond doubt that the office of the judge has been misused for the benefit of her children or family, even a whisper of such allegation, cannot be permitted.” The judge in her verdict also dealt with other grounds of apprehension of bias arising from her prima facie observations on March 9, when she termed the trial court’s order erroneous without hearing the other side. Citing past instances where she granted interim relief to Kejriwal and others without hearing opposing parties, she said such practice is not unusual. She held that initial observations or interim orders, even ex parte, do not indicate bias. Addressing Kejriwal’s apprehension of an unfair hearing based on past orders, the bench said none of its earlier rulings in cases involving Sanjay Singh, Manish Sisodia, and Kejriwal had been set aside or modified by the Supreme Court. It noted Singh’s bail was granted on ED’s concession, Sisodia’s on trial delay, and Kejriwal’s plea was referred to a larger bench without overturning the high court’s order. Rejecting claims of bias based on remarks by home minister Amit Shah, the judge held that seeking recusal on such grounds would amount to proceeding purely on imaginations and disbelief of incident. The petitions will next be heard on April 29 and 30, when CBI is set to begin its arguments. The court also granted Kejriwal and the other respondents a final opportunity to file their responses.