By Sanjay Raman Sinha
It is not everyday that a defendant questions the impartiality of the judge hearing his case. Yet, that is precisely what unfolded recently in the Delhi High Court, where former Delhi chief minister Arvind Kejriwal personally argued for the recusal of Justice Swarana Kanta Sharma.
The hearing concerned the Central Bureau of Investigation’s (CBI) appeal in the controversial excise policy case. A trial court had earlier acquitted Kejriwal, former deputy chief minister Manish Sisodia, and 21 others. The acquittal was challenged by the CBI, bringing the matter before Justice Sharma’s single-judge bench.
Kejriwal’s intervention transformed the proceedings into an unusual courtroom moment. Acting as his own counsel, he requested the judge to step aside, citing what he described as a “reasonable apprehension of bias”.
He offered two primary reasons. First, Kejriwal noted that Justice Sharma had attended several events organized by the Akhil Bharatiya Adhivakta Parishad, a lawyers’ group affiliated with the Rashtriya Swayamsevak Sangh. Since Kejriwal’s politics are openly opposed to the ideology of the BJP and the RSS, he argued that the association could create a perception of bias.
Second, he pointed to professional links involving the judge’s family. According to Kejriwal, the Solicitor General—appearing for the CBI in the case—had allocated legal work to the judge’s children, and the judge’s son had received substantial central government briefs. This, he contended, constituted a potential conflict of interest.
India’s legal framework on recusal remains largely uncodified. The decision to step aside rests with the judge and is guided by precedent, judicial ethics, and personal conscience rather than a rigid statute.
The Supreme Court has provided guidance through its “Restatement of Values of Judicial Life”, which advises that judges should avoid hearing matters where personal interest is involved or where impartiality may reasonably be questioned. Yet, the document is advisory rather than binding.
At the heart of recusal lies the ancient legal maxim—nemo judex in causa sua—no one should be a judge in their own cause. In practice, however, balancing fairness with judicial independence is complicated.
In the landmark National Judicial Appointments Commission case 2015, Justice JS Khehar warned that judges must not yield to unjustified demands for recusal. Doing so, he wrote, could create the impression that litigants can force a judge off a case merely by raising objections. The concern is echoed in other instances. In 2019, Justice Arun Mishra declined to step aside from a contentious land acquisition matter, remarking bluntly that recusing would encourage “bench hunting”—the practice of seeking a more favourable judge.
Yet, controversy surrounding bench assignments has surfaced before. During the sensitive Judge Loya death case hearings in 2018, four senior Supreme Court judges held an unprecedented press conference warning that “democracy is at stake” if judicial procedures are compromised.
Other cases have tested the system’s limits. In proceedings involving whistleblower Sanjiv Chaturvedi, multiple judges recused themselves over time. Similarly, recusal requests surfaced repeatedly during hearings linked to the Bhima Koregaon case, raising questions about whether such demands protect fairness or simply delay trials.
The debate also intersects with judicial appointments. In 2023, the elevation of Victoria Gowri as an Additional Judge of the Madras High Court was challenged due to her past political role in the BJP’s women’s wing. The Supreme Court dismissed the plea, ruling that past political affiliation alone does not disqualify a judge and emphasizing that judges must adhere to constitutional rather than political obligations.
Globally, recusal rules are clearer. In the United States, statutes require judges to step aside when impartiality “might reasonably be questioned”. In the United Kingdom, courts apply a “real possibility of bias” test from the perspective of a fair-minded observer.
India’s system, by contrast, leaves the final decision to the judge, making it inherently subjective—and often controversial.
Judges are expected to maintain a degree of detachment from public life, yet complete isolation is unrealistic. Participation in conferences and public events is common, and attending such functions does not necessarily signal ideological alignment. Still, as the old maxim about Caesar’s wife suggests, those entrusted with authority must remain above suspicion.
Public perception matters. A 2023 survey found that 62 percent of respondents believed political considerations influence decisions in High Courts.
Perhaps reflecting that tension, two prominent political leaders—Mamata Banerjee and Kejriwal—have personally appeared in court to argue their own cases within a short span of time.
Ultimately, the question of recusal lies at the intersection of perception and principle—between maintaining judicial independence and preserving public confidence.
Justice Swarana Kanta Sharma responded to Kejriwal’s request with composure and patience. “In my life, for the first time somebody has asked me to recuse,” she remarked in the Delhi High Court. “I hope I can give a good judgment.”
Her response underscored a larger truth captured by US Supreme Court Justice Felix Frankfurter: justice must not only be done—it must also appear to be done.
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