Delhi HC reserves order on pleas to recuse judge in excise policy case

The Delhi HC reserved its order on pleas from Arvind Kejriwal and others for the recusal of Justice Swarana Kanta Sharma in the excise policy case. The CBI vehemently opposed the move, calling it frivolous and a dangerous precedent.

The Delhi High Court on Monday reserved its order after hearing extensive arguments from all parties on pleas seeking recusal of Justice Swarana Kanta Sharma in the CBI's excise policy case, with the Central Bureau of Investigation (CBI), led by Solicitor General Tushar Mehta, strongly opposing the applications as "frivolous, vexatious and not bona fide."

CBI Strongly Opposes 'Frivolous' Pleas

Opening the opposition, Mehta argued that permitting such pleas would set a dangerous precedent, effectively allowing litigants to choose benches by casting aspersions on judges. "It is very easy to say the matter be sent to another judge, but look at the precedent it sets," he submitted, warning that routine recusal on such grounds would make it difficult for any judge to hear cases. He stressed that judges cannot respond to allegations made in court and that motivated recusal pleas must therefore be dealt with firmly.

Citing Supreme Court principles, Mehta said the threshold for recusal is "extremely high" and based on reasonable, tangible material, not conjectures or perceptions.

Addressing the core allegation that earlier observations of the Court had created apprehension, Mehta argued that those findings were made in a different legal context and were required under the law. "If the Court had not gone into those aspects, the order itself would have been bad in law," he said, adding that such observations are only prima facie and necessary to justify interim orders.

Referring to the March 9 order, Mehta rejected the contention that it was ex parte or caused prejudice. He submitted that notice had been duly issued and that service through counsel representing the accused was legally valid under High Court rules. "The same counsel who were served are appearing even today," he pointed out.

On the merits of interim directions, Mehta clarified that the Court had not stayed proceedings under the Prevention of Money Laundering Act (PMLA), but had merely adjourned them. He argued that PMLA proceedings are dependent on the predicate offence, and the discharge order, if left unexamined, would have impacted the ED trial as well. He cited multiple precedents to support deferring such proceedings until the core issue is adjudicated.

Mehta also highlighted that an earlier order of the Court upholding Kejriwal's arrest and the "reasons to believe" finding had been affirmed by the Supreme Court, alleging that this fact had not been disclosed by the applicants. "This is a clear suppression of facts before a constitutional court," he submitted.

On allegations relating to judicial bias, including references to the judge's attendance at events of the Akhil Bharatiya Adhivakta Parishad, Mehta termed the argument "fanciful" and "juvenile." He said the organisation is a bar association, and if judges are invited to speak on legal issues, they cannot be expected to refuse. Accepting such contentions, he warned, would have "catastrophic consequences."

He further argued that public perception or social media commentary cannot guide judicial decisions. "Are courts to decide matters based on what is being said on social media?" he asked, stressing that judicial independence must remain insulated from such pressures. Concluding, Mehta urged the Court to dismiss the recusal pleas with strictness, calling them an abuse of process and part of a broader attempt to create pressure on the judiciary.

Defence Argues 'Reasonable Apprehension' of Bias

Appearing for former Deputy Chief Minister Manish Sisodia, Senior Advocate Sanjay Hegde argued that the issue is not of actual bias but of reasonable apprehension. He submitted that when a court has already expressed strong views on facts, it may be appropriate to step back, particularly when the matter involves revisiting findings of another court in revision.

Emphasising the perspective of a litigant, Hegde said the apprehension must be assessed from the standpoint of a person fighting for liberty, not the judge. Hegde further submitted that if such apprehension is found to be reasonable, there may be no necessity for the same bench to proceed, especially when the matter can be assigned to another judge without affecting the system.

Senior Advocate Shadan Farasat, appearing for Vijay Nair, echoed similar concerns, describing the case as a "rare category" where the entire prosecution had been discharged. He argued that recusal jurisdiction requires the court to step outside its own legal lens and consider whether a fair-minded observer would perceive a reasonable apprehension.

Farasat pointed out that on several issues, the views expressed by the High Court appeared to be at variance with those of the trial court. Referring to the March 9 order, he submitted that it recorded a prima facie view that the trial court's findings were erroneous, which could give rise to a perception that earlier views may influence the present proceedings.

He maintained that while courts are legally entitled to take a different view, the law does not require litigants to argue against what may appear as a predetermined position.

The recusal pleas were filed by multiple accused, including Arvind Kejriwal, Manish Sisodia and Vijay Nair, in connection with the Delhi Excise Policy 2021-22 case, which is under investigation by the CBI and the Enforcement Directorate. After hearing all sides at length, the High Court reserved its order on the recusal applications. (ANI)

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