Delhi High Court Justice Swarana Kanta Sharma rejects Arvind Kejriwal's plea for her recusal in excise policy case

Justice Swarana Kanta Sharma of the Delhi High Court on Monday rejected the plea filed by Aam Aadmi Party (AAP) chief Arvind Kejriwal and others seeking her recusal from the Delhi Excise Policy case.

In a strongly worded judgment, Justice Sharma rejected allegations of bias on her part.

"The floodgates can't be opened to sow seeds of mistrust," she said.

Justice Sharma said that Arvind Kejriwal failed to point out any political statement she made which would be indicative of any ideological bias on her part.

"There is a presumption of impartiality of a judge and a presumption of impartiality has to be rebutted by the litigant seeking recusal of a judge," the Court said.

The applications filed by Kejriwal and others amounted to putting the judiciary on trial, Justice Sharma ruled.

"The litigant has put the institution of judiciary on trial. I choose the path to resolve the controversy. The strength of judiciary lies in its strong resolve to decide the acquisitions. I have written the order without being affected by anything," she said.

On her attending events organised by Akhil Bharatiya Adhivakta Parishad (ABAP), which is affiliated with the Rashtriya Swayamsevak Sangh(RSS), she said that the same were not political events.

"They were programmes on new criminal laws and the women's day events or to interact with younger members of the bar. Many judges have been participating in those events. Such participation cannot be used to insinuate ideological bias," she stated.

Regarding the contention that the judge's children are part of Central government panel counsel and there would be conflict of interest in her hearing the case, Justice Sharma said that such conflict should be clearly demonstrated in the particular case.

"In the opinion of this Court, even if the relatives of this Court are on the government panel, the litigant has to show the impact of that on the present case or the decision-making power of this Court. No such nexus has been shown," the judge said.

She further held that children of judges cannot be stopped from practicing law since that would amount to taking away their fundamental rights.

"If the wife of a politician can become a politician, if the children of a politician can become politicians. How can it be said that the children of a judge can't enter the profession of law? This would mean taking away the fundamental rights of a family of judges."

None of her children have been associated with the Excise Policy case, she added.

Truth does not lose its force merely because a lie is repeated several times, the judge further said.

"As an officer of this court, I am conscious of the fact that a lie even if repeated thousand times in court or on social media does not become truth. It remains false. Truth doesn't lose its force merely because a lie is repeated several times."

Merely stating that one will not get relief from court cannot be a ground to seek recusal of the judge, the judge said.

The Court said that Kejriwal has created a win-win situation for himself by seeking Justice Sharma's recusal.

"Now, Catch 22 situation of seeking a recusal...The applicant (Kejriwal) has created a win win situation for himself. If he does not get the relief, he will say that he had already predicted the outcome. If he gets the relief, he can say the court acted under pressure. The litigant may portray the situation whichever way it suits his narrative," Justice Sharma said.

A recusal would lead the public to believe that judges are aligned with a particular political party or ideology, she pointed out.

"This Court, by penning a recusal, cannot allow this. I am asking this question to myself. Maine apne aap se puchha ki agar m recuse nhi karungi to kya ho sakta hai. Fir maine socha agar m recuse karti hu tab kya hoga. (I asked myself what will happen if I don't recuse. I also asked myself what will happen if I recuse)," she said.

A recusal would carry deeper constitutional ramifications and will affect the credibility of the institution, she stated.

"The narratives in applications were based on conjecture. If I were to accept them, it would create a troubling precedent. I have decided fearlessly all questions before me. This court cannot be weighed down by the allegations and insinuations. This court will not yield or retreat when doing so will affect the credibility of the institution itself. It will not be justice administered but justice managed."

The personal apprehension of the applicants has not been able to pass the threshold test of reasonable apprehension of bias, the judgment said.

She also said that the plea seeking her recusal was not filed with evidence but with "insinuations".

"As curtains are drawn, I must add that the file seeking recusal did not arrive with evidence; it arrived on my table with aspersions, insinuations and doubts cast on my integrity, fairness and impartiality."

She also stated that the easier path of recusal would have offered a quiet exit.

"What lends a deeper disquiet is that attempt to attach a media-driven narrative to the proceeding including instances of vilification without accountability," the judge opined.

Recusal would not be prudence but abdication of duty and would be an act of surrender, the Court said while rejecting the plea.

Background

A trial court had on February 27 discharged Kejriwal and 22 other accused in the Delhi Excise Policy case. The Central Bureau of Investigation (CBI) challenged the order and the same is currently being heard by Justice Sharma.

On March 9, Justice Sharma issued notice in the matter and stayed the trial court direction for department proceedings against the CBI officer who investigated the case. Justice Sharma also gave a prima facie finding that some of the observations made by the trial court in its order were erroneous. She further directed the trial court to defer the Prevention of Money Laundering Act (PMLA) proceedings, which are based on the CBI's case.

Kejriwal and other accused - Manish Sisodia, Durgesh Pathak, Vijay Nair, Arun Pillai and Chanpreet Singh Rayat - subsequently filed applications for Justice Sharma's recusal.

Kejriwal argued that Justice Sharma should not hear the case because her son and daughter are panel counsel for the Central government, giving rise to a conflict of interest on the judge's part.

He further said that Justice Sharma had attended the conferences organised by the ABAP, an organisation ideologically opposed to AAP, and that her several previous orders have been set aside by the Supreme Court.

He also claimed that in the recusal plea, the apprehension of bias on the part of litigant is the deciding factor. In this regard, he highlighted the recusal application filed by Enforcement Directorate (ED) a few years ago in a money laundering case involving his AAP colleague Satyendar Jain. In that case, the ED's request for recusal was allowed on the ground that the ED had an apprehension of bias; and not that the judge was not upright, Kejriwal said.

The CBI opposed the recusal application, arguing that if Kejriwal's argument that Justice Sharma should recuse from the case because her children are on the Central government's panel is accepted, all judges whose relatives are on the government panel would be disqualified from hearing cases related to such governments or political leaders.

The central agency said that Kejriwal was trying to malign the judiciary and trying to pressure the institution.

On Kejriwal's argument that Justice Sharma should recuse from the case because she attended the ABAP event, the CBI said that accepting it would mean that any judge of the Supreme Court or the High Court would be disqualified from taking up any matters of the AAP chief.

Judgment in detail

In her judgment, Justice Sharma said that the argument in the case was about the fairness of a judge and the institution itself.

"When I began to pen this judgment, the courtroom had fallen silent. What remained was a quiet weight of being a judge who had taken the oath of Constitution of India that is Bharat. I realised my silence as a judge was itself was put to test and the question now was about the fairness of judge and institution itself."

She said that the recusal applications by Kejriwal and others challenged her impartiality and dignity.

"The issue was clear as to whether I should recuse. My impartiality and dignity had been challenged. The easier path would have to recuse without hearing the application. I decided to adjudicate the application because it was a question of the institution. I decided to decide it without being affected by the accusations," the judgment said.

She flagged that there was a contradiction in the arguments made by Kejriwal.

"What has made the task difficult is that contrary stands have been taken during the arguments. They have said that they do not doubt the integrity of judge but they want the case transferred not because I have a bias but they have apprehension of bias."

She then referred to certain examples of Kejriwal being granted ex-parte relief by her. However, he never raised any allegation of bias then since the orders were in his favour, the Court said.

"People belonging to Arvind Kejriwal's party did not argue that no interim order should be passed in their favour. There are several other cases pending before this Court, including the leaders belonging to Arvind Kejriwal's party. Many such orders have been continued by this Court and this judge but not allegations were raised then because perhaps the order was in their favour," Justice Sharma highlighted.

Justice Sharma also highlighted that the Supreme Court had tested her orders but had not made any adverse observations against the same.

"He (Singh) was granted bail (by Supreme Court) on a concession made by ED and no comments were made on my order. Similarly, in Manish Sisodia case, no findings or observations were made (by Supreme Court) on the orders passed by this Court."

Regarding bail granted to Kejriwal by the Supreme Court, Justice Sharma said,

"In Kejriwal's arrest case, only the necessity of arrest question was referred to a larger bench and interim bail was granted. The order of this Court was not set aside."

On Kejriwal's submission about Home Minister Amit Shah's statement that a plea has been filed before High Court against the discharge of the accused in Excise Policy case, Justice Sharma said,

"Seeking recusal on such a ground would amount to proceeding purely on imagination. This Court has no control on what a politician may choose to state in the public domain. It equally cannot regulate statements made by politicians."

Regarding her attending the events of ABAP, Justice Sharma said that those were not political events.

"It is difficult to appreciate how mere participation as chief guest or speaker can give rise to apprehension of bias or that it has foreclosed the ability of a judge to judge a case," the judgment said.

The relationship between the Bar and the Bench is not confined to courtrooms, the judge underscored.

"Whatever the organisation, whosoever its founder, judges are invited as judges of the court to interact with students or members of the bar. The engagement is confined to law...No litigant can sever or weaken the relationship between Bar and Bench. Some members of Bar may be representing a political party but when they appear before the court their cases are adjudicated on merits, not political affiliations," Justice Sharma emphasised.

Allowing the argument will mean judges will have to withdraw from public discourse.

On the argument by Kejriwal that Justice Sharma's children are part of the Central government panel counsel, she said that a litigant cannot dictate how the relatives of a judge out to lead their lives.

She said that her judicial career has spanned 34 years and that judges cannot be forced to pass tests by litigant that they are fit to hear a case.

"My judicial career spans 34 years. However, can it be that judges would have not pass now additional test put by the litigant that they are fit to hear the case? They will have to prequalify a test put forward by the litigant. The judges in that case would have to satisfy the manufactured test that they have not attended the function of an organisation or that their family members are in the legal profession. It would become impossible for any judge to function," the Court stated.

She added that recusing from the matter without hearing it will amount to surrendering her duty.

"I know I will be criticised as a judge. Chahe wo social media mein ho ya applications me. Mujhe pata hai ki mujhe kitna aur kya karna hai. Agar main bina sune recuse kar leti to main apni duty surrender kar deti (I will be surrendering my duty if I recuse without hearing the matter)," the judge said.

A courtroom cannot be a theatre of perception, she said.

"In case this court withdraws from this case in absence of any demonstrable cause, it would attach weight to allegations which carry none," the judge said while rejecting the plea for recusal.

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