Justice Swarana Kanta Sharma recuses from Excise Policy case but initiates contempt case against Arvind Kejriwal, others

Delhi High Court Justice Swarana Kanta Sharma on Thursday initiated contempt of court proceedings against Aam Aadmi Party (AAP) chief Arvind Kejriwal and other AAP leaders including Manish Sisodia, Durgesh Pathak, Sanjay Singh, Vinay Mishra and Saurabh Bharadwaj for making defamatory and vilifying allegations against her on social media in connection with the excise policy case.

Pertinently, in light of the initiation of contempt case, the judge directed that the excise policy case be transferred to some other Bench since Kejriwal and Sisodia are accused in that case.

"It could be that if I keep hearing this (excise policy) case, Arvind Kejriwal and other people might think that I have a grudge against him. That is why I have thought that this particular case will be heard by some other bench," the judge ordered.

Justice Sharma clarified that the present order should not be understood as transfer of matter merely because such demands were made for her recusal by Kejriwal and others.

"This court has already rejected the demand for recusal. However, subsequent events (initiation of contempt) give rise to different issues. Therefore, let it be a reminder that you pay a personal price for constitutional courage," she said while ordering that the excise policy matter be posted before another bench.

Solicitor General (SG) Tushar Mehta urged the judge to continue hearing the matter.

"My first request would be that this court continue hearing the matter. Everyone must know that if i seek a recusal and if i cannot satisfy the judge, my remedy is to go to a higher forum. These unscrupulous litigants have chosen not to go to Supreme Court because they know they cannot successfully challenge this order," SG Mehta said.

He also dismissed allegations connecting the judges' children and the government.

AAP leaders had alleged conflict of interest on the part of the judge since her children are panel lawyers for the Central government.

"Whenever any children of a sitting judge has been in my office, I have never accepted any brief int hat court. i have never asked the judge to recuse himself. I refuse the brief. Your ladyship's children are one of the 600-700 panel lawyers. They are not associated with me. No one can understand this because we are not in narrative building exercise. Some guidelines need to be laid down about how to deal with such instances," SG Mehta said.

"I can say with a matter of proud that no politician has ever stooped this low that the entire institution is tarnished," he added.

"That is why I have decided to take (contempt) action," Justice Sharma replied.

She also made it clear that even as she is refraining from hearing the excise policy case, she is not recalling her earlier judgment in which she had rejected Kejriwal's plea for her recusal.

Additional Solicitor General (ASG) SV Raju also requested the judge to continue hearing the excise policy case.

"It is the contempt matter that is precluded from being heard. My ladyship may not hear the contempt matter but the precedent is that my ladyship may hear the main matter," the ASG said.

However, Justice Sharma turned down the request.

"No Mr Raju. I value and respect what you are saying. But as a judge, I know what kind of litigant is before me. The litigant will again say this. Tomorrow he will say he is a victim because the person drawing the contempt is against him and hearing the matter," Justice Sharma responded.

Kejriwal, Sisodia and Pathak had earlier sought Justice Sharma's recusal. However, Justice Sharma rejected their recual application on April 20.

The judge in that order said that a politician cannot be allowed to sow seeds of mistrust and that the application seeking her recusal amounted to putting the judiciary on trial.

Various posts had appeared on social media against Justice Sharma before and after the order passed by her prompting her to initiation the contempt of court proceedings today.

Instead of filing an appeal before the Supreme Court, Kejriwal took to social media against her, the judge said today in her order.

"Instead of carrying the order of this court to Supreme Court, Arvind Kejriwal carried it to social media. My videos of speaking at a law college was edited," the judge stated.

The judge flagged a letter and a video which were circulated by the contemnors via media and other online platforms announcing their boycott of the proceedings after had refused to recuse herself from hearing the case.

"Though inside court, Mr. Kejriwal said he respects the court, outside court he orchestrated a coordinated campaign against me," the judge said.

She held that a parallel media trial was proceeding against her while she was considering the excise policy case and the recusal applications filed by certain accused seeking her withdrawal from the case.

"This court came to learn that letters, videos, social media campaigns were widely circulated. It was a coordinated campaign. While the issue inside the court was dealt with, a parallel narrative outside was being constructed through digital campaign and insinuation directed at this court," the judgment said.

The judge flagged the allegations made against her including a relationship between the court and a political party.

"He could have gone to Supreme Court against my order of refusing to recuse. He, instead chose to write a letter and made a video. Several members of his party and spokespersons also repeated the allegations. It was not a criticism, it was a campaign against this court. It question the integrity and impartiality of this court. Allegations were made against political affiliations of this court. It also came to the notice of the court that one of the alleged contemnors had gone to the extent of suggesting a relationship between this court and a political party," the judge said.

She particularly highlighted a statement by Kejriwal on how the public would not have the confidence that Justice Sharma would rule against the Central government or BJP.

"He said 'how can ordinary people believe that I can rule against the SG, BJP or the Central government and that the proceedings before this court would be futile'. On the face of it, the statement is not bona fide. Kejriwal imputed political motives to this court," the judge underlined.

If such allegations are allowed to be publicly circulated, it would seriously prejudice the institution of judiciary and lead to anarchy, she opined.

"This would mean that if a person does not like the judge he can publicly accuse him of bias, publish letter and video and it will, in this court's opinion, will lead to anarchy," the order said.

Specifically on a video shared by AAP leaders in which it was alleged that she was speaking at an RSS event, the judge said that the video was edited and she was in fact speaking at a college event.

"These great individuals edited the video. They extracted just a 59-second clip and, by distorting it and cropping it, showed it in a way that where I was saying that whenever I come to Bholenath. They changed it to say that whenever I come to an event of a political group. This has created an impression that this court got her promotion under the influence of so-and-so. These people knew that they were editing the video," the order noted.

In this regard, she also highlighted how fact check reports published by Bar and Bench and AltNews reflected the correct position but the same were conveniently ignored by the contemnors.

"Fact-check reports were published, which were conveniently ignored. There were fact checks by Bar & Bench, PTI and Alt News. Even the said college issued a statement that the video was edited," the judge pointed out.

She maintained that while she is trained to accept fair criticism, the material circulated against her exceeded that threshold.

"I am trained to accept fair criticism and dissent... The robe worn by judge demands calmness. However, sometimes remaining silent is not judicial restrain. The moment has arrived today. The utterances by the contemnors did not merely express disagreement but they lead to only one conclusion that it was a campaign of vilification not against this sitting judge but entire judiciary. Some of the contemnors were armed by political power. Videos were circulated which were edited. They chose to intimidate me. While narratives were being manufactures against this court even the family members of the judge were dragged into this narrative to ensure calculated humiliation," the judgment said.

It was not merely personal attack but constitutional injury to destabilise this institution of judiciary, the judge added.

Judiciary survives not on political power but on public confidence, the order said.

"This court did not expect political retaliation. This institution is not political. The survival of judiciary depends not in its power but public confidence. Any attempt to destroy that confidence through a coordinated campaign constitutes gravest instance of contempt," the Court held.

She also lamented that her children were drawn into the controversy.

"My children were wholly disconnected with this case and yet they were targeted. Kejriwal tried to sow seeds of distrust against the judiciary," she said.

It was psychological coercion, she added.

Justice Sharma was hearing the plea filed by the Central Bureau of Investigation (CBI) challenging a trial court order discharging all 23 accused in the excise policy case including Aam Aadmi Party (AAP) leaders Arvind Kejriwal, Manish Sisodia and others.

The excise policy case arose in 2022, when the CBI registered a First Information Report (FIR) alleging that the Delhi Excise Policy of 2021-22 was manipulated to facilitate monopolisation and cartelisation of liquor trade in Delhi.

The probe agency said that AAP and its leaders received kickbacks from liquor manufacturers due to manipulation of the policy. The Enforcement Directorate (ED) also later registered a case under the Prevention of Money Laundering Act (PMLA) in the matter.

What followed was a series of arrests of opposition leaders, criticised by some quarters as being politically motivated.

It was alleged that a criminal conspiracy was hatched by AAP leaders, including Sisodia and Kejriwal and other unidentified and unnamed private persons/entities at the stage of the policy’s formulation.

The conspiracy, it was alleged, involved loopholes “intentionally” left or created in the policy. These loopholes were allegedly meant to favour some liquor licensees and conspirators post the tender process, it was claimed.

A trial court on February 27 this year discharged Kejriwal and 22 other accused from the case. The 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 PMLA proceedings, which are based on the CBI's case.

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

The same was rejected by Justice Sharma, who decided that she would continue hearing the matter. Subsequently, Kejriwal, Sisodia and Pathak decided to boycott the proceedings before Justice Sharma.