An unusually high media presence combined with a heavy police bandobast was the first indication that a high-profile matter was going to be heard in the Delhi High Court.

Former Delhi chief minister Arvind Kejriwal was going to personally argue his case seeking Justice Swarna Kanta Sharma’s recusal from hearing a plea filed by the Central Bureau of Investigation (CBI) challenging his discharge in the liquor scam case.

On February 27, a trial court in Delhi discharged – an instance where the judge finds no reason to start a trial against an accused – Kejriwal, ex-Delhi deputy chief minister Manish Sisodia and 21 others in the liquor policy case. The trial court had pulled up the CBI and observed that the case was wholly unable to survive judicial scrutiny and stood discredited in its entirety. Kejriwal’s plea seeking recusal of the high court judge came days after the matter was listed before Justice Sharma in the high court. 

On Monday, he submitted at least 10 reasons why he wanted Justice Sharma to recuse herself.

Chaos inside and out

The chaos seen around the Delhi High Court’s main gate was mirrored inside as well, evident from the large crowd of lawyers, and journalists gathered outside Justice Sharma’s courtroom – the battleground where Kejriwal was going to personally argue his case seeking her recusal from hearing CBI’s challenge against his discharge in the liquor scam case.

As the clock turned 2 pm, there was a rush to enter the courtroom which was surprisingly bereft of chairs (only three chairs were kept, perhaps to accommodate more people), considering the high interest in this matter.

By the time the matter began at 2:50 pm, the courtroom was packed to its gills. Lawyers and journalists adjusted themselves like Tetris blocks – making just enough space to (breathe) and work, even as files, laptops and iPads were passed back and forth hand to hand above everyone’s heads.

The March 9 “ex parte” order and other reasons why

One of Kejriwal’s core grievance stems from the “undue haste” in which Justice Swarna Kanta Sharma passed the March 9 order – the first day of hearing in CBI’s plea – partially staying the trial court judgment, made “prima facie” observations on the trial court’s observations saying they were “erroneous” and needed reconsideration, and stayed the recommendation to initiate departmental proceedings against the CBI officer probing the case.

“I felt hurt,” Kejriwal repeatedly submitted.

“When this order came, my heart dropped,” Kejriwal told the court in Hindi. “I had doubts whether court is biased and if I will get justice here,” he said, adding that these doubts prompted him to write to the Delhi High Court Chief Justice asking him to transfer the matter before another bench, failing which the present application was filed seeking her recusal.

The ex-chief minister submitted Supreme Court judgments which said it was not necessary that a judge is biased, but it becomes a case for recusal if there is a reasonable doubt in the minds of the parties.

Kejriwal, who argued for close to an hour, relied on Justice Sharma’s past orders – particularly five cases – which favoured the CBI and the Enforcement Directorate’s (ED). He said Justice Sharma’s observations were tantamount to passing judgments, pointing out a “trend” where the judge essentially endorsed and upheld almost all contentions/requests/arguments made by the CBI and ED.

Kejriwal “argued to his heart’s content” (Justice Sharma’s words) and by the end had submitted close to 11 reasons why he sought her recusal. These included insinuating political bias after she attended events organised by the Akhil Bharatiya Adhivakta Parishad (ABAP) – considered to be an arm of the Rashtriya Swayamsevak Sangh (RSS).

Though not included in his petition, Kejriwal orally submitted Home Minister Amit Shah’s statement that “after the High Court’s judgment, Kejriwal would have to go to the Supreme Court”.

Defensive judge?

At the outset, Justice Swarna Kanta Sharma said she was going to hear the entire case today itself – no matter how long it took. As of 6:45 pm, the matter had been going on for close to four hours with only one five-minute break in between.

Justice Sharma issued instructions preventing anybody from helping Kejriwal during the submissions. Twice or thrice, Justice Sharma heavily came down on advocates who were standing in Kejriwal’s vicinity and appeared to be helping the ex-CM.

“To save time,” Justice Sharma recorded statements as they were being argued and questioned Kejriwal’s objection to her attendance at the ABAP event. “When I went to the event, did I give any statement? Or was it a legal event?” Justice Sharma asked.

To which, Kejriwal said, “Unki ideology ke hum sakht khilaaf hain. Aur ye case political case hai. If your honour is attending a programme of a particular ideology, toh reasonable bias create hota hain, impression that kyuki mai opposite ideology ka hu, toh whether i will get justice or not.” (We are opposed to their ideology. And this case is political. If your honour is attending a programme of a particular ideology, it creates a reasonable bias, an impression. Whether I will get justice because I am from an opposite ideology.)

After a marathon four-hour hearing, Justice Sharma said she learnt a lot from all parties and hoped she would “give a good judgment”.

In between arguments, she also took a moment to plug one of her judgments – Amandeep Dhall, an accused in the same liquor scam case – which allegedly led to “prison reforms in Tihar”.

To recuse or not to recuse 

A recusal, where a judge chooses not to hear a matter before them, is not entirely unusual and is a part of the judicial process. A judge may choose to recuse themselves from hearing any matter for any reasons which can be stated – or not; or, a litigant may request a recusal on the apprehension that they may not get a fair hearing.

Last year in May, the top court held that recusal is a “matter of discretion of the judge” and it couldn’t issue guidelines on the same. 

Senior advocates say the issue is not whether the judge is corrupt or not, the issue here completely rests on whether a litigant has faith in the judge who will be hearing their case.

In its 2019 Indore Development Authority case, the court held that “the ultimate test is that it is for the judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view".

In its 2015 Supreme Court Advocates-on-Record Association case, a Supreme Court five-judge Constitution Bench held that “in cases where the judge has a pecuniary interest in the outcome of the case, his disqualification is automatic”.

“If a judge has a past track record on particular issues, it leads to a lack of confidence. Then justice demands that it is not only done, but seen to be done as well,” senior advocate Meenakshi Arora said. Arora took this point further and said that in cases, where a judge has a certain “pre-disposition” to issues, then even the court on the administration side should not assign them those issues.

“By all means, even if the judge is unbiased, such apprehensions not only impact their reputation, but have a bearing on the court’s reputation too,” Arora said.

Senior advocate Jayant Bhushan said a judge is allowed to have their political ideology as long as they don’t filter down or have a bearing on their orders. “This (political ideology), by itself doesn’t disentitle a litigant to seek recusal,” he said, adding that a recusal must rely on “a series of factors which come together” to create an apprehension of bias.

Referring to the Kejriwal-Justice Sharma matter, Bhushan said, “If I was in her place, I would have recused. Not because of the views or whether there is merit in the allegations, but in the interest of fairness and justice.”

Junior lawyers however have a different point to make. (Newslaundry spoke to several junior lawyers, who wished to remain anonymous for reasons that will come through below.)

“There needs to be a fixed standard for recusal,” they all said. A judge should not hear a particular matter if they have financial interests; where their kin are lawyers in the matter, or where they will benefit in any way, they added.

In the event a recusal is sought, then the same must be heard by a different judge for impartiality. Imagine a scenario where you go before a judge, seek recusal and lose? they said.

The junior lawyers said it’s not so easy to seek recusal of a judge. If a judge is biased it has implications of life and liberty in criminal cases and monetary implications in commercial cases.

In commercial cases, ideally a judge should disclose all the stocks they own. What if they hear a matter in which they have stocks (knowingly, or unknowingly)? Won't it have an impact on their judgment knowing it will have a bearing on their portfolio?

The lawyers cited the example of Supreme Court judge MM Sundresh who declared the stocks he owned. He is an “outlier” and this transparency is welcome, they said.

“Clients will come and go, but we as lawyers will remain in court and continue to argue before the same judge our clients may have taken umbrage against,” one lawyer said.

 Lawyers also have their own way to deal with such cases. There is a general unspoken practice where lawyers seek adjournments if a case is before an “unfriendly judge”. Some even advise clients from petitioning their case if they know that a matter will go before a particular judge.

Forum shopping or bench hunting?

However, this practice could also be seen as “forum shopping” or “bench hunting”.

On the Kejriwal-Justice Sharma saga, Solicitor General Tushar Mehta has argued against the former CM’s attempt to seek recusal. Mehta said this matter assumes importance because it sets a “precedent” which is based on “surmises, conjectures and unreasonable apprehension…virtually maligning the bench”.

“A litigant can choose the bench if judges start recusing,” he said. “Will any judge in this country be able to decide impartially,” Mehta added.

There have been several instances where courts have come down against this practice, going as far as to fine litigants to indulge in the same. Recently, the Bombay High Court had condemned forum shopping and fined a litigant Rs 50,000 for unsubstantiated bribery allegations to force a judge’s recusal.

From Manikarnika Ghat to the Kashi Vishwanath Corridor, Banaras is being reshaped in the name of vikas. Our NL Sena asks who pays the price. Power it here.