The legal battle over the petition by Arvind Kejriwal to have Justice Swarana Kanta Sharma recused in the Delhi excise policy case has stirred up a raging controversy on the issue of judicial fairness and the extent to which a judge can be put in their place. At the center stage of this controversy lies an argument by Central Bureau of Investigation (CBI). According to the agency, should the grounds that Kejriwal cites to request the recusal be accepted, it would in effect disqualify a large portion of judges in India to hear a case that involved a government or political leader
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The Gist of the CBI Case.
The argument by the CBI is based on a slippery slope reasoning. Kejriwal had contended that the judge should recuse herself on the basis of various things, such as her attendance at a seminar organized by Akhil Bharatiya Adhivakta Parishad, her children being empaneled as government counsel among other things. The investigative agency, in its reply to the High Court, cautioned that letting such claims pass as adequate disqualifying grounds would set a precedent that would not work.
The agency claimed that to consider the presence of a professional legal seminar or the presence of people working as government-appointed lawyers in a family as sufficient to declare a judge as partisan, the effect would be far-reaching. The CBI suggests that this may disqualify any judge whose family members do work in state or central governments or even in the case of undertakings run by the state, he or she would not be able to preside over a case involving the same. Through this implication the agency implies that the courts would be in a state of stagnation, because a colossal proportion of the legal bar, and consequently, the judiciary, would be somehow affiliated to the state apparatus, either professionally or in the family
https://frontline.thehindu.com/columns/kejriwal-recusal-cbi-judicial-conflict/article70873133.ece
Why Critics consider the Argument weak.
Although the argument by the CBI that there can be judicial paralysis seems sensible at face value, according to legal experts the act of describing the issue as a blanket disqualification is faulty in itself. The main argument of this criticism is that the agency is confusing two entirely different issues: professional activities as a matter of course and certain conflicts of interest.
Critics of the CBI position claim that recusal requests are seldom, or never, founded on a fact alone. They are normally based on the doctrine of reasonable apprehension of bias instead. This is a legal principle that postulates that justice should not merely be done but also be perceived to be done. A litigant is requesting the court to consider the weight of the sum of the different factors when he or she raises concerns. Critics believe that, by simplifying the multi-layered application of Kejriwal down to a binary disqualify or not idea around a single variable, the CBI is shirking the need to consider the larger notion of fairness
In addition, the idea that all judges would be disqualified is considered by many to be an effort to close legitimate questioning. The law and order system is founded on the belief that judges can distance themselves and their personal or family affiliations with their role in the law. But the necessity of recusing is to save the sanctity of that same system. When the answer to a lawful inquiry about a possible conflict of interest is to say that answering, would lead to the destruction of the judiciary, a barrier is erected which shelters the institution against the transparency it needs, the transparency which is healthy.
The Peril of the Doctrine of Necessity.
The position of the CBI happens to mention the concept of the doctrine of necessity, which has been applied to Indian jurisprudence when all the judges who could be so engaged are not available. Although the doctrine is a known legal instrument, it is to be used as a last resort. It enables a court to hear a case further since, in case they step out, there would be no one to administer justice.
The risk as perceived by legal analysts is in the application of this doctrine in anticipation. When the state or its agents claim that all are disqualified when you start digging, it is an indicator that the system cannot even deal with the fundamental questions of ethicality. This may be risky as it compromises the confidence of the people. When litigants are made to believe that their interests in a fair trial are being swept away with sweeping, alarmist threats of anarchy, instead of a detailed analysis of the facts, the sense of a fair trial is lost.
Judicial Conscience and Legal Precedent.
Finally, it is the discretion of the individual judge to recuse. It is an exercise of judicial conscience. The judge has to make a determination whether the intervention actually affects the impartiality of the proceedings. The CBI is in effect attempting to determine the scope of that conscience externally by forcing the court with the argument that a bad precedent would be established.
It is a thin line between deterring forum shopping, where litigants attempt to select judges they think will be sympathetic to them, and safeguarding the right to a fair trial. It is not just the issue of the particular case of Kejriwal; it is a question of institutional health in general. When the case against recusal is based on the notion that the judiciary is too weak to go through the exercise, then it is likely to do more harm to the institution, than a recusal of any one judge would ever have.
The case is a stand-off. Although the agency cautions that there is a domino effect that would place the courts on its knees, the recusal seekers insist that the silence of the law on a particular disqualification trigger should not be used as an excuse of not noticing the appearance of conflict. The main question that continues to haunt the High Court is whether this case will result in more codified and transparent recusal system or just be another reinforcement of the existing, often obscure, status quo.
