The recent judgment by Justice Swarana Kanta Sharma refusing to recuse from hearing a petition by Arvind Kejriwal has prompted spirited discussions on the jurisprudence of a judge’s recusal. Commentators criticised the judgment for misapplying the test of ‘reasonable apprehension of bias’ and made calls for the judiciary to “look within” on issues of self-regulation.
This article focuses on the institutional design of allocation of cases by the Chief Justice of the Delhi High Court through the judges' roster. It traces the roots of the unique category of cases related to elected representatives and argues that the existence of such a category risks recurring allegations of bias. It would be better to scrap the category altogether and allocate these cases at random.
The Chief Justice is the sole master of the roster in the High Court. The roster is prepared with his approval (Volume 5 Chapter 3 Part-A Rule 2 of the Delhi High Court Rules). Though on the on the judicial side, the Chief Justice is only the ‘first amongst the equals’, on the administrative side in the matter of constitution of benches and making of the roster, he alone is vested with the necessary powers [State of Rajasthan v. Prakash Chand, (1997)].
The roster of the Delhi High Court is divided broadly into five sub-divisions: (i) Division Benches (two judges sitting together); (ii) Single Benches (Civil Jurisdiction); (iii) Single Benches (Criminal Jurisdiction); (iv) Original Jurisdiction (Civil); and (v) the Intellectual Property Rights Division. For our purposes, we are only concerned with the Single Benches (Criminal Jurisdiction) of the High Court.
There is a recent creation of a ‘Judge in-Charge’ in the criminal jurisdiction - the senior-most judge dealing with criminal cases. The Judge In-Charge has powers to allocate matters which cannot be listed before roster benches (likely by reasons of recusal or transfer), while the powers of mentioning urgent matters is retained with the Chief Justice (see, Point No. 17 in the current roster).
On a closer reading of the roster of the criminal jurisdiction, the case categorisation is either decided on the basis of the ‘type’ of the case of certain number of years (for example, “Criminal Revision Petitions of the year 2021 & 2026”) or on the basis of the subject-matter of a particular case (for example, “Cases relating to sexual harassment” or “Appeals relating to Prevention of Corruption Act”). The sole exception to this is the category of “Criminal cases relating to sitting/former MPs/MLAs”, which classifies cases on basis of who is the individual involved in the matter. Every other category in the criminal jurisdiction is either related to the type or to the subject-matter of the case. This classification seems arbitrary, but its justification can be traced back to the directions of the Supreme Court.
Though it is unclear how this category was created, it may perhaps trace its roots to the proceedings before the Supreme Court, which culminated in the judgment of Ashwini Kumar Upadhyay vs Union Of India (2023). The case related to expeditious disposal of criminal cases against elected members of parliament and legislative assemblies. The Court laid down extensive guidelines for supervision and monitoring by the High Court of cases pending across the country. Among the many directions issued, the relevant ones for our purpose included setting up special courts for MPs and MLAs in every district court, a Special Bench of the High Court to hear a suo motu case registered to monitor pendency of such cases, and a Special Bench of the High Court to consider vacating stay of trial orders to ensure commencement and conclusion of trials.
A suo-moto case was indeed registered by the Delhi High Court (Court on Its Own Motion v. Union of India - WP (CRL) No. 1542/2020 - later renamed to In Re: Special Courts for MPs/MLAs v. Union of India & Ors. vide order dated April 20, 2022). Vide order dated April 20, 2022, a direction was passed to list all cases pending before the High Court involving sitting or former MPs or MLAs before a Bench designated by the then Acting Chief Justice. On April 27, 2022, the designated judge was chosen to be Justice Yogesh Khanna (see, Item Nos. 141 onwards). Subsequently, a new roster was introduced on May 18, 2022 and the new category of “Criminal cases relating to sitting/former MPs/MLAs” is seen for the first time. This author has not been able to locate any practice direction, notice, or order where this categorisation has been explicitly created.
Case assignment of judges at the High Court is routinely rotated at least twice a year before each vacation. This practice is beneficial since it limits the ability to predict which judge will be allocated a particular case assignment, thereby reducing the chances of forum shopping. However, for the category of cases relating to MPs and MLAs, once a judge assumes charge, it is usually left undisturbed by the Chief Justice. To take an example, Justice Swarana Kanta Sharma’s predecessor, Justice Ravinder Dudeja, assumed charge of this category through roster dated March 17, 2025 and continued its adjudication through eight substantial changes in the roster, until January 5, 2026 (see the relevant rosters dated March 25, 2025, April 02, 2025, April 05, 2025, July 21, 2025, July 24, 2025, August 12, 2025, September 08, 2025 and October 28, 2025).
While the objective of creating such a category was to secure expeditious disposal of cases against elected representatives, the unintended consequence has been of creating a risk of apprehension of bias, since all politically charged cases are heard by one particular judge for an unusually long period of time.
Scrapping this category and spreading cases across the criminal jurisdiction will have two major benefits. First, by reducing the chances of the same judge dealing with a subsequent matter in the case, it insulates judges from allegations of apparent bias, especially holding a “predetermined view of the outcome”. Second, assuming that the Supreme Court’s direction in Ashwini Kumar Upadhyay to prioritise such matters is adhered to, the cases will be decided more efficiently since the workload will be divided across multiple judges. One can sustain the argument that creating a special bench to hear these cases is efficient only when that special bench is allocated fewer categories of cases than a regular roster on the criminal jurisdiction. But as is seen even in the present roster, the Bench hearing matters relating to MPs/MLAs has a sufficiently packed regular criminal roster, comprising bail matters and criminal appeals, which, being personal liberty matters, should always take precedence.
The reform suggested above will obviously fail if we ignore the institutional issue of opaqueness in allocation of cases by the Master of the Roster, the Chief Justice. Even with the existence of the special category, the Chief Justice retains administrative control over who gets allotted this category of cases. The discussion about reforming allocation is, therefore, much more complex. But the existence of a separate category of cases for elected representatives while keeping the rest of the roster undisturbed only encourages allegations of bias and increases inefficiency in deciding these extremely important cases.
Varun Ahuja is a lawyer and a former law researcher at the High Court of Delhi.