Arvind Kejriwal can't seek judge's recusal because she attended ABAP seminar: CBI to High Court

Kejriwal has filed the application for recusal of Justice Sharma, claiming there was reasonable apprehension that the hearing before her would not be impartial and neutral.

New Delhi: Former chief minister Arvind Kejriwal and other discharged accused in the liquor policy case cannot seek the recusal of Justice Swarana Kanta Sharma merely because she attended a "legal seminar" by the Akhil Bharatiya Adhivakta Parishad (ABAP) as it does not demonstrate any ideological association, the CBI has told the Delhi High Court.

In a reply filed to applications by the AAP leader and others seeking the judge's recusal from hearing the Central Bureau of investigation's (CBI) challenge to the trial court's discharge order, the agency highlighted that several sitting Supreme Court judges, including Chief Justice of India Surya Kant, and high court judges, have attended functions by the RSS-affiliated confederation of lawyers, and if their plea is accepted, all of them would have to recuse from hearing any case involving politically exposed persons as accused.

The CBI asserted that making "unscrupulous" and "sweeping" allegations of bias over attending legal seminars, which had no political topic, was an attempt to scandalise and lower the court's authority and interfere with the administration of justice, which amounted to contempt of court.

Kejriwal has filed the application for recusal of Justice Sharma, claiming there was a grave, bona fide, and reasonable apprehension that the hearing in the matter before her would not be impartial and neutral.

His plea stated that Justice Sharma has decided multiple cases arising from the CBI FIR, including Kejriwal's petition against his arrest, and never given relief to any of the accused.

Besides Kejriwal, the applications for recusal of the judge have also been filed by AAP leaders Manish Sisodia and Durgesh Pathak. Other respondents, including Vijay Nair and Arun Ramchandra Pillai, have also filed similar applications seeking recusal.

On April 6, Justice Sharma had granted time to CBI to respond to the recusal application and listed the case for hearing on April 13.

The CBI said in its response that the prayer for recusal was based on frivolous and baseless averments, which were wholly vexatious, and should be dismissed with "heavy cost".

"It is submitted that attending a legal seminar can never be a ground for recusal when the topic of the seminar was not a political one therefore it does not demonstrate any ideological association, hence the said averment is also otherwise untenable. If attending a function of Akhil Bhartiya Adhivakta Parishad shows ideological bias of any judge then large number of sitting high court and Supreme Court judges would have to recuse from hearing any case where politically exposed persons are accused," the reply stated.

The agency said that a view taken by a judge in a judicial decision cannot be a basis to allege bias and the request by Kejriwal and others amounted to "forum shopping" .

Underscoring that Justice Sharma should not recuse herself from the matter, the CBI said the judge was assigned the roster of hearing cases concerning MPs and MLAs by the chief justice of the high court, which cannot be changed only on Kejriwal's request.

It further said different judges of the high court as well as the Supreme Court have also rendered adverse findings in the liquor policy case and if Kejriwal's contention was to be accepted, all the judges would have to recuse.

Apprehension of not getting a fair hearing cannot be based on "conjecture and surmises" and the agency stated that an order of recusal cannot be passed at the "drop of a hat", the response said.

The reply stated that independence of judiciary must be protected from external pressure and the power to recuse has to be exercised cautiously and in exceptional situations, else "unscrupulous litigants" would indulge themselves in bench-hunting,

"Solely because an accused has filed an application for transfer, a Judge is not required to express her disinclination. S/He is required under law to do his duty. S/He has to perform his duty and not succumb to the pressure put by the accused by making callous allegations. S/He is not expected to show unnecessary sensitivity to such allegations and recuse herself from the case. If this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process," it said.