Justice Swarana Kanta Sharma of the Delhi High Court on Monday read an hour-long order giving reasons why she won’t step back from hearing the appeal by the Central Bureau of Investigation (CBI) against discharge of Aam Aadmi Party (AAP) chief Arvind Kejriwal, Manish Sisodia and 21 others in Delhi Liquor Policy case.
“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.” Justice Sharma said.
Justice Sharma gave counter-arguments to each of the allegations raised by former Delhi Chief Minister Arvind Kejriwal.
Following are key reasons given by Justice Sharma for not recusing from the case:
1. Illusions Of Litigant Cannot Set Aside Presumption Of Impartiality
Justice Sharma while dictating order underscored several times that Arvind Kejriwal in his arguments said he is not questioning the integrity of the judge and he has utmost respect for the judge, but he has doubts and apprehensions in his mind as to whether he Will get justice or not from her court.
Justice Sharma said that there is a presumption of impartiality of a judge and that presumption has to be rebutted by the litigant with proofs seeking recusal of a judge. Justice Sharma said that “personal apprehensions” and “illusions” of Mr Kejriwal has not been able to pass the threshold test of reasonable apprehension of bias.
She further said that the plea seeking her recusal was not filed with evidence but with “insinuations”.
“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 said.
2. Judges Attend Several Bar Body Events
On allegations by Arvind Kejriwal that she attended events organised by Akhil Bharatiya Adhivakta Parishad (ABAP), which is affiliated to RSS, she said that she has attended several such events by bar bodies of various ideologies as it is part of routine of any judge.
“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.
Stressing that the relationship between the Bar and the Bench is not confined to courtrooms, Justice Sharma said that nobody can come in between this relationship which is essential part of judicial institution.
“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.”
3. Fundamental Rights Of Judge’s Children To Practice Law
On allegations by Arvind Kejriwal of “conflict of interest” in her hearing the case, she said that a clear nexus has to be shown that the judge’s decision will be affected by the relationship with her family members on government panel.
“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,” she said.
She further observed 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 Liquor Policy case, she clarified.
4. Selective Picking Of Orders By Arvind Kejriwal To Create Narrative
Justice Sharma then listed past instances of Kejriwal and his party mates securing relief from her court without even hearing the other side.
When she granted relief to them in first instance, Kejriwal never raised any allegation, 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 no allegations were raised then because perhaps the order was in their favour.”
5. Supreme Court Did Not Make Adverse Observations About Her Orders
Arvind Kejriwal argued that since all orders passed by Justice Sharma in his case were overturned by Supreme Court, she should not hear the case.
Justice Sharma, however, highlighted that the Supreme Court had tested her orders but had not made any adverse observations against the same.
“He (AAP MP Sanjay Singh) was granted bail (by Supreme Court) on a concession made by ED (Enforcement Directorate) 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.”
6. Court Has No Control Over Statements Made By Politicians
On Arvind 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 the 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.”
7. Recusal Will Create Wrong Precedent, Scar Judiciary
The judge said that she chose the tough path to hear the case as her recusal would lead the public believing that judges are aligned to a particular political party or ideology.
It would carry deeper constitutional ramifications and will affect the credibility of the institution, she added.
“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.”
8. Arvind Kejriwal’s Catch 22 Situation
The Court said that Kejriwal has created a Catch 22 situation where whatever she chooses to do would create 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.
Justice Sharma, however, said that as a judge she cannot set a wrong precedent by recusing as it Will send a wrong message to powerful that judiciary can be bent from social media narratives.
Saying that the powerful politicians cannot be allowed to do “forum shopping” for their own benefits, Justice Sharma said she will not recuse from the case.
9. Cannot Abdicate Duty
Justice Sharma said that her recusal would be abdication of duty and would be an act of surrender. Asserting her oath as a judge, Justice Sharma said that Kejriwal has not only made allegations against her but has put the institution of judiciary to trial and her decision will have far reaching impact on judiciary.
“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.”