'No Bias Can Be Attached To Justice Swarana Kanta Sharma' : CBI Opposes Kejriwal's Recusal Application

The Central Bureau of Investigation (CBI) has opposed before the Delhi High Court applications filed by AAP supremo Arvind Kejriwal and other accused persons seeking recusal of Justice Swarana Kanta Sharma from hearing the agency's challenge to their discharge in the excise police case.

In its response, CBI has said that bias cannot be attached to views of judges taken in their decisions.

It said that the allegation of bias raised against Justice Sharma for merely attending a seminar of Akhil Bhartiya Adhivakta Parishad amounts to contempt of court and scandalizing the authority of the Court.

The reply has been filed in the recusal applications filed by Arvind Kejriwal, Vijay Nair, Arun Ramchandra Pillai, Manish Sisodia, Chanpreet Singh Rayat and Durgesh Pathak.

CBI has opposed the allegation that the ex parte stay granted by Justice Sharma for the trial court's observations against the Investigating Officer showed a pre determined mindset. The agency has said that there is nothing abnormal or contrary to law in staying actions which are consequential to giving effect to the impugned order when the said order itself is under challenge before a superior court.

On the allegation that the proceedings are conducted in haste, the agency has said that a total of 27 hearings had taken place in the case in less than 3 months demonstrating that MP and MLA cases are being heard in an expeditious manner uniformly.

On the alleged likelihood of Justice Sharma's ideological association with Akhil Bhartiya Adhivakta Parishad, CBI has said that they are “unscrupulous and sweeping averments” in seeking to attribute bias to a particular bench for merely having attended legal seminars which were not related to any political topic whatsoever.

“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 response reads.

Further, the CBI has said that Justice Sharma has in fact extended the benefit of interim bail to accused Pillai on three occasions, adding that passing of both favourable and unfavourable orders to the accused itself shows that there cannot be any apprehension of bias.

“Concept of 'bias' cannot be attached to views of Judges taken during judicial proceedings in their decisions. If that is the touchstone for recusal, which has been argued by the opposing counsels, then it would tantamount to forum shopping or selection of benches by parties by seeking recusal of Judges who hold apparently or seemingly unfavourable views expressed in their judgments in the past. It would not simply stop at seeking recusal of this Hon'ble Judge but also of any and every single Judge who may have passed some adverse judgment in the past on the same or similar issue,” the response states.

“This Hon'ble Court ought not to accede to the request for recusal of Hon'ble Judge in the interest of justice and rule of law. It is submitted that taking a judicial view in a case is inherently alien to the doctrine of bias. The law on bias is that appearance of bias or prejudice must stem from an extra-judicial source,” it adds.

Further, CBI has submitted that no party has the right to be heard by a bench of its own choice, as the prerogative to compose the bench lies with the Chief Justice, being the master of the roster. It has also said that the MP/MLA Roster is with Justice Sharma and cannot be changed only on a request by the applicants.

“The fact that a judge has taken a judicial view in certain proceedings does not mean that that Judge cannot hear subsequent cases between same parties. The contention sought to be canvassed today is not only unknown to well settled principles of the law on 'bias' but has also never been the "practice of Courts" in India,” CBI has said.

The agency has contended that different judges of the High Court have rendered adverse findings based on material on record in the excise policy case and such findings cannot be a source of bias against any of the judges.

If the petitioners' contention is to be accepted, all the learned judges would be required to recuse from hearing the present case, CBI has said.

“ The judiciary's independence and the ability of judges to render fair judgments must be preserved without the influence of external pressures or unfounded allegations. Allowing litigants to dictate bench composition undermines the very foundation of justice, promoting a dangerous precedent that could erode public confidence in the judicial system,” the response reads.

“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. The unscrupulous litigants will indulge themselves in bench-hunting,” it adds. 

Earlier this week, Arvind Kejriwal appeared in the Court to argue the recusal application himself. The matter will be considered next week.