‘Put in Catch-22 situation’: Delhi HC judge rejects Kejriwal’s plea, refuses to recuse in excise policy case

Rejecting their pleas, Justice Sharma said the applications did not carry evidence, but cast “aspersions, insinuations and doubts” on her “fairness and impartiality”. “If the court was to recuse, it would not be prudence but abdication of duty, and would amount to lending legitimacy to aspersions and insinuations and doubts, and no ground for the same exist. It would be an act of surrender… a signal that an institution can be bent and shaken,” she observed.

Kejriwal had cited “conflict of interest” as one of the grounds, contending that Justice Sharma’s children are empanelled as government counsel. “Merely because judges take an oath, their families don’t (take an oath) that they won’t enter this profession,” Justice Sharma said.

“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 a judge has been misused for the benefit of her children or her family, even a whisper of such allegation cannot be permitted… Therefore, if the wife of a politician can be a politician without having to explain her expertise or experience in the field, and the children of politicians can enter politics, how can it be just to question the children of a judge, who study like others, struggle like others and prove themselves in court like others, to earn their livelihood,” she said.

“Accepting such an argument would mean taking away the fundamental rights of family members of judges as if merely because a parent is a judge… they can never enter the legal profession… There is a clear distinction between genuine conflict of interest and an attempt by a litigant to create an impression of conflict of interest… A litigant, instead of seeking justice, cannot be permitted to create a situation that lowers the judicial process itself by raising unfounded allegations. A conflict of interest arises only where there exists a real direct substantial connection or interest,” she said.

Kejriwal had also argued that he apprehended bias as Justice Sharma had attended events organised by the Akhil Bharatiya Adhivakta Parishad (ABAP), a lawyers’ body considered to be politically affiliated.

Pronouncing the verdict in open court, and noting that this ground for seeking recusal was only taken by Kejriwal and not the other five, Justice Sharma said attending ABAP events “cannot be used to insinuate political association”. She said judges are invited across the country for various events to interact with law students or members of the Bar, and such engagement is “often confined to the law, functioning of the courts and the relationship between the Bench and the Bar”.

“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 stands “sacred and above the politics of any level… the judiciary cannot be placed in an ivory tower and be expected to live a life of complete seclusion, cut off from society, organisations and the Bar,” she said.

“The allegations levelled, the grounds raised and the associations referred to, were neither proximate nor relevant to the issue… What lends a deeper disquiet is also, as also submitted by Solicitor General, the attempt to attach a media-driven narrative to the proceedings, including instances of vilification without accountability… There may be a political figure as one of the respondents before this court, however, the law remains completely indifferent to the status of a litigant,” she said.

She said the pleas for recusal had put her in a “Catch-22” situation, where Kejriwal had created a “win-win case” for himself — where recusal would insinuate truth in his allegations, and non-recusal would allow him to claim that he had already predicted the outcome. “Courts will not be invited to such a match of Catch-22 situation,” she said.

“If judges bow down to such vilification and sustained attack… today, it may be this court, tomorrow it may be another… Societal implication, institutional consequences and the harm it will cause to judicial independence has weighed heavily… it will undermine the duty of the court… A recusal will also lead the public to believe that they are aligned to a particular ideology. This court cannot allow this to be a battleground questioning judicial integrity,” she said.