Listen to this article:

Justice Swarana Kanta Sharma of the Delhi high court on April 20 dismissed former Delhi chief minister Arvind Kejriwal’s recusal plea in the Delhi excise-policy case. The signed order runs to 115 pages. She held that a litigant cannot dictate how a judge’s children conduct their professional lives. The empanelment of her relatives as central government counsel, she ruled, bore no demonstrated nexus to the proceedings. Unfounded insinuation, she said, cannot be elevated into a ground of bias. Five co-accused joined Kejriwal in the application: Manish Sisodia, Vijay Nair, Rajesh Joshi, Arun Ramachandran Pillai and Durgesh Pathak. The matter arises from the Central Bureau of Investigation’s revision petition against the trial court’s February 27 discharge order.

The refusal must be tested against the recusal jurisprudence the Supreme Court has been building since 1987. Prashant Bhushan’s critique on X, which followed the order within hours, goes to the doctrinal core. It suggests that the judge misread the very law she was applying.

The anchor and its qualifications

The anchoring authority remains Ranjit Thakur v. Union of India (1987). Justice M.N. Venkatachaliah there held that the test of bias is perspectival, not introspective. The judge must look not at her own mind, but at the mind of the party before her. Reasonableness of the apprehension, not proof of actual prejudice, is the touchstone. Justice must not only be done but manifestly be seen to be done.

That generous standard did not remain unqualified. In State of Punjab v. Davinder Pal Singh Bhullar (2011), the Supreme Court tempered the Ranjit Thakur formulation. Justice B.S. Chauhan imported the English “real likelihood” rule: whether a reasonable person, apprised of all the facts, would have serious apprehension of bias. Where real ground for doubt exists, he held, the doubt must be resolved in favour of recusal. The judgment also developed the waiver strand: a party aware of potential bias who raises no timely objection cannot complain later.

Supreme Court Advocates-on-Record Association v. Union of India (2015) added the institutional dimension. Fali Nariman and Mathews........

© The Wire