The Central Bureau of Investigation told the Delhi High Court on Monday (April 13) that accepting petitions filed by AAP Supremo Arvind Kejriwal and others seeking to recuse Justice Swarana Kanta Sharma from hearing the liquor policy case will set a bad precedent.
Earlier in the day, Kejriwal, while arguing in person, stated that he had a reasonable fear that he would not get a fair hearing. He is seeking Justice Sharma’s recusal from hearing the CBI review petition challenging the trial court’s order acquitting Kejriwal and all other accused in the controversial liquor policy case.
The recusal threshold is the highest.
Appearing before the CBI, Solicitor General Tushar Mehta submitted before Justice Swarana Kanta Sharma that the matter becomes important “because of the precedent it may set,” that based on “unreasonable assumptions, conjectures and fears and virtually defaming the court, a litigant may choose the court.”
“If judges start recusing themselves, will any judge in this country be able to decide impartially?Mehta asked.
Mehta asserted that the petitioners seeking recusal were misguided, and while the CBI has the right to oppose such applications, the court also has a duty to thwart any action that results in unwarranted defamation and creates an atmosphere where the court may have given in to some kind of pressure.
“Their Lordships are accepting two lists, MP/MLA cases and other cases as well. I will help the court prove this is wrong. There is a pattern. It is not only the right of the CBI to object but also the duty of the court to thwart any action that results in wanton defamation and create an atmosphere where the court ultimately has to succumb to some kind of pressure. “It is very relevant that the threshold for deciding a recusal request is always at the highest level.”
Regarding Kejriwal’s contention that Justice Sharma’s earlier observations rejected his plea challenging ED’s arrest, Mehta submitted that under Section 19 of the Prevention of Money Laundering Act, the Court was mandated to make such preliminary observations on the need for arrest.
The SG also noted that the Supreme Court has not set aside the High Court judgment approving his arrest (the matter is only referred to a larger bench while granting interim bail to Kejriwal). He submitted that the Kejriwal suppressed this aspect and misled the Court.
On the Supreme Court’s grant of bail to another applicant, Manish Sisodia, Mehta said the Supreme Court granted bail due to his long incarceration.
The applicants were attended to, they chose not to remain present
On Kejriwal’s objection to the High Court passing an ex parte interim order on the first day of the CBI review hearing, SG said the accused were given copies in advance and opted to remain absent.
“See the conduct, that this request is not a good faith request. Judgment on the discharge application was reserved on 22 February and judgment was handed down on 27 February. The matter was listed on March 9. I will show that the HC rules allow the parties’ attorneys to be served and were served. Now the same lawyers who were notified appear.”.
“The Court could have suspended the release order, but it neither required nor considered it. The provisional order is of such a nature that it does not cause them any harm,” he added.
He said that immediately after the March 9 order, Kejriwal and Sisodia appeared before the Chief Justice of the High Court to withdraw the matter from the present court.
“The president of the Supreme Court approves the order on March 13. The next date there are two proceedings (in the Supreme Court). Challenging the order of March 9 on the ground that prima facie some observations were made. Whenever the court passes an interim order, prima facie observations must be made. But they approached the Supreme Court filing SLP and a court order challenging the Chief Justice’s order rejecting the recusal application. The next time the issue was included on March 16, respondents asked for time.“Mehta said.
He further said that to date, the SLP remains under objections that have not been removed.
CBI questions Kejriwal’s plea on Justice Sharma’s attendance at Adhiwakta Parishad events
Questioning the allegation raised by Kejriwal that Justice Sharma’s attendance at the Adhiwakta Parishad events raised fear of bias, the SG said:
“I have a very serious opinion about this. The political opinions of the parties can be anything. But it is a bar association. There is nothing like having ideological inclinations. The moot question would be if a bar association invites a judge to speak on an issue of law and not ideology, would the judge be justified in refusing?
From SC to this court and other high courts have attended Adhiwakta Parishad functions and spoken about law. I don’t want to name and sensationalize. But take a look, another judge on this court. Would this judge also be disqualified? A sitting SC judge with his honor and the issue was the same. His bail (Kejriwal) is granted by one of the Supreme Court judges who attended Adhiwakta Parishad. It’s disheartening that anyone can even make this argument.“.
ED case only adjourned
Mehta then addressed Kejriwal’s argument that Justice Sharma’s adjournment in the ED trial created a likelihood of bias.
He maintained that CBI filed a specific application requesting that observations against CBI officials be stayed. He said ED’s trial is never independent as there has to be a predicate offence, which is the basis of ED’s case.
“The moment an order is absolutely incorrect, the predicate offense is brought to an end. The only consequence would have been that the ED case would also suffer the same fate… The court was fully aware. His Lordship has not stayed but has only said that the ED case be adjourned. A balancing order of equity was passed which does not eliminate the ED proceedings. Otherwise all the properties are released. The properties were attached“he added.
The applicants try to instill fear.
He further said:
“The judges cannot answer… The Supreme Court has said that this trend is growing and has reached the proportion we are seeing today. Fear is something that respondents try to instill. This challenge must be rigorously rejected. Based on the material of this case, other courts also dealt with them and came to the same conclusion. Even if they have different opinions, that is not a reason to request recusal.“.
On the argument of apprehension in the minds of the applicants, Mehta said:
“An apprehensive man can apprehend anything that may strike the lightning tomorrow. “It can be a tactic too.”
Referring to a judgment presented by Mehta, “Even a lawyer who signs such an application containing scandalous accusations and derogatory references is also found guilty. In this case I’m not throwing that high.”
I can’t check social media posts.
In social media posts on the matter, Mehta further said:
“This is a question of institutional respect. Various things are happening in the country. It is a question of how to make the system work honestly. If this is the standard, would the case decide cases based on what the public feels? For social media posts? For social media, few things are needed, phone, data and a lot of time. We are not guided by media posts.”
On the contention of the petitioners that a short date was given in the CBI review petition, Mehta said:
“One argument was that your lordship gave a small date. The High Courts and trial courts are mandated… in MP MLA cases, the SC has directed (for time-bound decisions). People don’t understand this. There is a direction to resolve the cases quickly.”
To this the court said orally: “There is a standing order that I am obliged to follow.”
Mehta, in concluding, requested that the applications be dismissed with costs and also requested that a “contempt action” be initiated.
The Court today reserved the order on the recusal appeal after hearing the arguments.
Case Title: CBI vs Kuldeep Singh & Ors