A day after former chief minister Arvind Kejriwal told the Delhi high court that neither he nor his counsel would appear before justice Swarana Kanta Sharma, AAP leader Manish Sisodia on Tuesday sent a similar letter, saying he too would boycott further proceedings in the CBI’s appeal against their discharge in the excise policy case.
In his four-page letter, Sisodia said he was in respectful agreement with the stand taken by Kejriwal, but raised two concerns that continued to trouble him — the judge’s repeated public association with the Akhil Bhartiya Adhivakta Parishad (ABAP), and her children’s professional engagements with multiple Union government panels, which he argued created an appearance of proximity to law officers representing the prosecuting agency.
He further said that while the judge, in rejecting the recusal pleas, drew parallels with children of professionals pursuing similar careers, no one had argued that judges’ children could not practise law or be appointed as government counsel through a fair and merit-based process.
“What disturbs me even more is that, instead of confronting these questions, the judgment appears to answer a question that I, or for that matter any litigant, had never raised. I had not questioned the children’s right to practise their profession. No citizen can and should do that. My question was altogether different, and far more constitutional in character: when such circumstances exist, what is the duty of the parent-Judge to preserve, protect, and publicly sustain the appearance of impartial justice? It is this inescapable question that remains unanswered, and it is that silence which continues to weigh upon my conscience,” the letter stated.
On Monday, Kejriwal had written to the judge saying that after dismissal of his application, he had carefully reflected on the options available to him. Stating that his “well-grounded apprehensions” remained unresolved, he said the judgment left him with the impression that his legitimate concerns had been perceived as a personal attack on the judge and an “assault” on the institution itself.
On February 27, the trial court discharged Kejriwal, Sisodia and 21 others, holding that the CBI’s material did not even disclose a prima facie case, prompting the agency to challenge the order before the HC.
On March 9, Justice Sharma stayed the trial court’s direction for departmental action against a CBI officer, calling the remarks prima facie misconceived, and deferred ED proceedings.
On March 11, Kejriwal sought transfer of the case to another judge, which was rejected on March 13. He, along with Sisodia and four others, then moved an application before the judge seeking her recusal.
On April 20, the judge dismissed the applications, holding there was no “demonstrable cause” for recusal and warning that stepping aside on perceived bias would set a disturbing precedent.
The letters have come at a time when the court granted a last opportunity to Kejriwal, Sisodia and others to file their replies and fixed April 29 and 30 for hearing the CBI’s appeal on merits.
Legal experts said the court could still proceed with the matter despite the letters.
Senior advocate Maninder Singh and advocate Kanhaiya Singhal said one option available to the court was to appoint an amicus curiae.
Singh said the court was not powerless in such a situation and could appoint a designated senior advocate or any other lawyer as amicus curiae, or friend of the court, to assist on issues of law as well as facts involved in the case.
He said the amicus would not represent the accused but would assist the court as a neutral participant.
He further explained that the amicus could aid the court on legal issues such as whether discharge was appropriate at this stage, whether contradictions in statements could have been considered, and whether the “beyond a reasonable doubt” standard applies at the stage of framing charges, if the court so desired.
Singh said the court could also issue notice to the parties seeking their response on appointing an amicus, though the accused could not object as it was the court’s prerogative.
He, however, pointed to a complication, saying the parties had already indicated that neither they nor their counsel would appear, and the court was not yet aware how many of the 23 accused had taken this stand.
“The amicus curiae’s job will not be to represent them, he is a friend of the court. He will be standing there and answering the court’s questions on primarily two aspects. The first one is the law, which is paramount and the other one will be the facts if the court wishes to have some clarity on that. Since it’s a revision the court can seek assistance from the amicus on the issue of legality, propriety or correctness of the order. Also the court can seek assistance from the amicus on the issue whether the order and its findings are based on the principle of grave suspicion or by appreciating the evidence and forming an opinion on the principles of ‘beyond a reasonable doubt’. Amicus curiae is the only probable option in this situation when the respondent has refused to argue the matter. The judge will say I am giving you a notice and show cause why an amicus should not be appointed, but see here also there is a catch. They say neither me nor my lawyer will appear. Amicus is appointed by the court and a senior designate advocate or any other advocate will be appointed and will be asked to assist the court on various aspects,” Singh said.
Singhal said, “Court can proceed in absentia and to do complete justice, can appoint an amicus to represent the party which is not appearing deliberately as per law mandated by the Supreme Court in the case of KS Panduranga v State of Karnataka.”
Asked about legal aid, Singh said there was no question of providing it in such a case because the accused had expressly said no one would represent them, and added that issuing bailable or non-bailable warrants was also not a viable option.
“There is no question of legal aid, since here he is saying that no one will represent me, and there is also no option of issuance of bailable or non-bailable warrants,” he said.
Singhal, however, differed on this point and said, “Court can issue fresh notice of appearance despite knowing that they have refused to appear and/or can proceed further by issuing a bailable or non-bailable warrant for appearance as per section 72 of BNSS. Wilful non-appearance is also punishable as per section 208 of BNS.”
Senior advocate Manish Vashisht cautioned that non-participation by any respondent before the court to defend the discharge order would be at their own risk.
“The respondents are aware of the date, and if someone chooses to remain absent, then the consequences may follow. The court may proceed to hear the matter in the absence of the respondent, as the absence will be a wilful one. The law does not recognise such a course, which is not in accordance with the law. A party cannot be permitted to blow hot and cold. If the order is not as per law, a verbal protest or non-participation shall not absolve the party unless he/she chooses to challenge it as per law,” he added.