Explained: Legal Options Before Arvind Kejriwal, Court After Standoff Over Recusal

Arvind Kejriwal and Manish Sisodia have decided to boycott the proceedings before Justice Sharma in Delhi High Court.

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• Delhi HC judge Justice Sharma refused to recuse herself in the liquor policy case
• AAP leaders Kejriwal and Sisodia boycotted further proceedings before Justice Sharma
• Legal remedy is to challenge the recusal rejection in the Supreme Court, experts say

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New Delhi:

After Delhi High Court judge Justice Swarana Kanta Sharma refused to recuse herself in the liquor policy case, Aam Aadmi Party (AAP) chief Arvind Kejriwal and former Delhi deputy chief minister Manish Sisodia have written to her expressing doubts over her impartiality.

Both AAP leaders have declared they have decided to adhere to the "satyagraha" path by not participating or further arguments in the proceedings before Justice Sharma.

Read: "Won't Appear In Person": Arvind Kejriwal's "Satyagraha" Move Against Judge

With them deciding to boycott proceedings before Justice Sharma in the CBI's appeal against a lower court's order to quash the corruption charges against them, NDTV has reached out to constitutional and legal experts to understand what may happen next.

What High Court May Do Next

Court Can Issue Warrants: The Delhi High Court, in a criminal revision, is empowered to secure the presence of Kejriwal and Sisodia in the court by issuing warrants, Supreme Court advocate Akanksha Rai told NDTV.

Proceed With Material On Record: Swapnil Tripathi, Lead at Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy, said that the court can proceed with the material already on record.

"If a litigant refuses to participate in proceedings before a judge, as is the case with Kejriwal, the proceedings do not come to a halt. The matter can proceed in his absence on the basis of the material already on record and the submissions of the opposing party," he said.

Court Can Appoint A Lawyer: Both Tripathi and Rai said that, if necessary, the court may also appoint an amicus curiae to assist it, particularly in a matter of public importance. "The hearings before Justice Swarana Kanta Sharma will therefore continue irrespective of Kejriwal's personal appearance or that of his counsel," Tripathi said.

No More An Ex Parte Case: This should not be confused with an ex parte (one party) situation where a party does not enter appearance at all and may subsequently avail certain procedural protections to challenge the eventual order, Tripathi explained. "In the present case, Kejriwal has participated in part of the proceedings and is now choosing not to appear further. In such circumstances, those protections are unlikely to be available to him," he said.

Contempt Action: Tripathi pointed out that during the proceedings, Solicitor General Tushar Mehta had argued that raising allegations of bias on the basis of a judge's attendance at professional forums, such as the Adhivakta Parishad, may amount to interference with the "administration of justice" and could constitute contempt of court. It is therefore possible that Kejriwal's decision not to appear before Justice Sharma may be viewed in that light.

Legal Remedies For Kejriwal, Sisodia

Approach Supreme Court: The main remedy available to Kejriwal and Sisodia would be to challenge the High Court's rejection of the appeal seeking recusal before the Supreme Court.

Advocate Rai further said that writing a letter to the judge is not part of the prescribed legal process. "The appropriate legal course is to challenge the order before Supreme Court," he added.

Read: Manish Sisodia Refuses To Pursue Liquor Policy Case In Delhi Judge's Court

Tripathi recalled a similar situation that had arisen involving Kejriwal's colleague, Satyendra Kumar Jain. Jain's case was transferred to a different judge on an application by the Enforcement Directorate on the grounds of alleged bias.

"Jain had challenged this unsuccessfully before the High Court and thereafter before the Supreme Court. The courts, in those proceedings, examined whether the apprehension of bias was reasonable in the circumstances. However, this was not a clear case of recusal per se and dealt with transfer," Tripathi said.

Complex Situation For AAP leaders

In case he appeals in Supreme Court, Kejriwal's position would be complex as the decision to recuse rests primarily with the judge concerned, and courts have consistently been deferential to that determination, said Tripathi.

"This is intended to preserve judicial independence and prevent forum shopping. Consequently, even on appeal, the Supreme Court would likely examine whether the legal threshold of a reasonable apprehension of bias was met, rather than substitute its view for the judge merely because a litigant seeks a different forum," he added.

He pointed out that this is a relatively unusual situation.

"At the moment, I cannot think of a clear precedent where a judgment rejecting an application to recuse has been tested in appeal with a higher court. In that sense, while the broader principles governing recusal are settled, their application in the present context may evolve through judicial determination," he added.

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Arvind Kejriwal, Justice Swarana Kanta Sharma, Delhi Liquor Policy Case