WE LIVE IN UNUSUAL TIMES. As a law teacher, to me, living in unusual times means the normative systems of law collapsing every day in a piecemeal manner. You can feel the presence of legality around you, but its legitimacy is suspect. Political theorist Judith Shklar once warned us that “procedurally correct repression is perfectly compatible with legalism.”
Last month, as Delhi’s ex-chief minister Arvind Kejriwal appeared in court one day to argue that the presiding judge, the Delhi High Court’s Justice Swarana Kanta Sharma, recuse from his case. As a law teacher, watching, reading and attempting to make sense of the case, it became my entry point to understand the current legitimacy crisis of the Indian judiciary. What especially caught my curiosity was Kejriwal’s invocation of Gandhian ‘Satyagraha’ after Justice Sharma refused to recuse herself in the Delhi Excise Policy case. The Aam Aadmi Party leader suggested he would not cooperate with the court, as he and his lawyers would not appear before it. Subsequently, today, Justice Sharma has expressed intent to appoint three senior advocates as amici curiae owing to Kejriwal, and his co-accused Manish Sisodia and Durgesh Pathak’s decision to boycott the proceedings.
This is an unprecedented development in postcolonial India. Gandhi used ‘satyagraha’ against colonial governmentality, and colonial courts were part of it. A former chief minister’s invocation of ‘satyagraha’ against a present-day court must ring an alarm bell in a democracy. How did we reach this point? Is Kejriwal right in invoking ‘satyagraha’ against a court of independent democratic India? Does he have the moral agency to invoke ‘satyagraha’? These questions may continue to haunt our judicial system.
A former chief minister’s invocation of ‘satyagraha’ against a present-day court must ring an alarm bell in a democracy. How did we reach this point?
‘Swadeshi’ Recusal Jurisprudence and the Ghost of Pinochet
Since this recusal episode has panned out, several opinion pieces have been written on India’s recusal jurisprudence being vague. An opinion piece in The Wire argues for codified statutory recusal, as it suggests “the act of stepping down remains a voluntary monologue rather than a transparent adherence to rule-based due process.” Written by three scholars of economics, the article places faith in a “codified and objective standard of impartiality.” Though I agreed with the article's spirit, I had my doubts about the suggestion. My doubts are shaped by Shklar’s thesis that the infatuation with legalistic ideology, oriented toward orderliness and formalism, inherently favors authority.
Our insistence on formalism will not resolve the ethical crisis. After all, we do not need a codified rule of recusal to understand a simple point that a judge must not sit in judgment when he himself is being accused in a sexual harassment complaint. Former Chief Justice of India (‘CJI’) Ranjan Gogoi’s refusal to recuse in 2019 showed the deep moral crisis of the Indian judicial system. Justice Swarana Kanta Sharma's refusal to recuse augments this moral crisis.
The Leaflet reported that Kejriwal cited ten grounds for Justice Sharma’s recusal. There are two grounds cited by Kejriwal that caught my attention: Justice Sharma’s participation in the programs of Akhil Bhartiya Adhivakta Parishad, the lawyer’s wing of the Rashtriya Swayamsevak Sangh, and apprehension of bias arising from the professional engagement of Justice Sharma's relatives, which extended to an allegation of conflict of interest. These two grounds caught my attention due to the case's political nature and the settled ground of conflict of interest for recusal in jurisdictions with a strong record of judicial statesmanship.
I would like to unpack the grounds for recusal within the Indian context. But before I do that, I must state clearly that I am not a proponent of ‘swadeshi jurisprudence’ which is being widely invoked currently in our courtrooms. Previously in The Leaflet, Shubhr Aakriti and I argued that insisting on Swadeshi jurisprudence without addressing social inequities in our society will roll back our progress in constitutional governance and liberties. Moreover, the epistemic valorization of methodological nationalism by our courts, as former CJI B.R. Gavai did in his ceremonial bench sitting as a judge, is making our courts insular, stripping away the epistemic confidence to learn from other jurisdictions.
In this recusal case, Senior Advocate Sanjay Hegde, appearing for another accused Manish Sisodia, invoked Sita’s ‘Agni Pariksha’ to make a point on individual integrity and purity. I found this invocation of Sita’s Agni Pariksha before a woman judge very layered, gendered, and problematic. Without such gendered metaphors, the question of reasonable apprehension in a litigant's mind can be addressed, provided we are open to learning from other jurisdictions, especially in recusal cases. After all, the Bangalore Principles of Judicial Conduct are an international framework.
If a judge is involved in the promotion of a cause in which the judge is involved together with one party, it must lead to automatic disqualification.
Neither the litigants, in their oral arguments, nor Justice Sharma expressly relied on the House of Lords judgment in R v. Bow Street Metropolitan Stipendiary Magistrate ex Parte Pinochet Ugarte (No.2), popularly known as the Pinochet case, which many scholars treat as the most important modern precedent on recusal (Although, notably, in her judgment, Justice Sharma did refer to the Supreme Court of India’s decision in SCAORA v. Union of India (2015), which in turn had relied on the Pinochet case).
Pinochet, the brutal dictator of Chile, brought a petition before the House of Lords to set aside the decision of the Appellate Committee that heard his appeal against extradition to Spain. Pinochet argued that appellate committee member Lord Hoffman had such a link with Amnesty International, the global non-governmental organisation, that gave the petitioner the apprehension that he might be biased against Pinochet. The House of Lords clarified that the pivotal point of recusal is not the actual bias but the appearance of bias.
This case laid down that the principle of ‘a man may not be a judge in his own cause’ has ‘two similar but not identical implications’:
“If a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome, then he is indeed sitting as a judge in his own cause… The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way, his conduct or behavior may give rise to a suspicion that he is not impartial.”
In this case, Lord Hoffman is suggested to be disqualified to judge for an important non-pecuniary interest. Lord Browne-Wilkinson referred to clause 3(c) of Amnesty International Charity Limited’s (‘AICL’) Memorandum that mentions one of its objects is "to procure the abolition of torture, extra-judicial execution and disappearance" and opined that AICL plainly had a non-pecuniary interest to establish that Senator Pinochet was not immune.
Lord Browne-Wilkinson was categorical that the matter was not related to pecuniary advantage but was ‘concerned with the promotion of the cause’. If a judge is involved in the promotion of a cause in which the judge is involved together with one party, it must lead to automatic disqualification.
A new radical reading of Gandhi is needed that answers the political necessities and social realities of our times.
The Pinochet Principles and the present case
This brings us to the question of Justice Swarana Kanta Sharma's recusal. In the present case, one of the concerns highlighted is this: whether participation in, or association with, organizations perceived to hold identifiable ideological positions could give rise to a litigant's apprehension regarding impartial adjudication? This is not to suggest that such participation, by itself, establishes bias or warrants automatic disqualification. Rather, it raises a question that falls within the established doctrine. The question is whether the degree and nature of such association meet the threshold at which recusal becomes appropriate in order to preserve public confidence in the administration of justice. This inquiry must be fact-specific and must be in tandem with the principle that justice must not only be done but must also be seen to be done.
An investigative report by Sushovan Patnaik from 2024 draws attention to certain public engagements and associations relevant to the present discussion, including participation in events connected with the Akhil Bhartiya Adhivakta Parishad. It is important to state at the outset that journalistic accounts, by their nature, cannot be treated as conclusive evidence of bias or predisposition. Nor does such participation, without more, establish any disqualifying interest. However, such material may form part of the broader factual context within which a litigant’s apprehension is articulated. The legal inquiry, therefore, is not whether these reported associations demonstrate actual bias, but whether, taken at their highest and assessed objectively, they are capable of giving rise to a reasonable apprehension in the mind of a fair and informed observer.
Akhil Bhartiya Adhivakta Parishad was founded by RSS leader Dattopant Thengadi. The association insists on cultivating ‘Bhartiya ethos’. Patnaik reports that on September 7, 1992, when the ABAP’s formation was announced, Thengadi gave his keynote address titled ‘Towards an Indigenous Legal System’ where he argued for the rewriting of the Constitution, lamented against Article 370, and Articles 29 and 30 of the Constitution, blaming them for ‘separatist tendencies’ and ‘minorityism’ and asked why no steps are taken to implement uniform civil code. The political leanings of the association well established in public records, as a sitting judge, the argument has been raised that Justice Sharma should have plainly avoided patronising programs organised by the ABAP. Recently, former Supreme Court judge Justice Abhay Oka underscored this point in an event organized by Adhivakta Parishad, where he stated: ‘If, as a sitting judge, I was invited by Adhivakta Parishad to speak on their platform, I would have politely said no because Adhivakta Parishad does have political inclinations.’
Returning to Mahatma in Schmittian Times
Arvind Kejriwal's invocation of ‘Satyagraha’ after Justice Sharma’s refusal to recuse has deepened the crisis. Does Kejriwal have the moral agency to invoke Gandhian satyagraha? Can he legitimately invoke satyagraha against the judicial system of independent India?
The first question regarding Kejriwal's moral agency in invoking Gandhian satyagraha has been raised from some quarters. Can he invoke Gandhi in a case related to Liquor Policy, while Gandhi was always in opposition to liquor and its consumption? Kejriwal removed Gandhi’s poster from his office; can he turn back to Gandhi when it is convenient for him? These questions stem from a conservative reading of Gandhism that projects Gandhi as a saintly figure and blunts the political significance of Gandhi.
A new radical reading of Gandhi is needed that answers the political necessities and social realities of our times. Social theorist Ashis Nandy hints at the possibility of this Gandhi in his piece ‘Gandhi after Gandhi’. Nandy explores many versions of Gandhi, in which he challenges the status quo and is accessible even to those young ‘ragamuffins’ too, who do not abjure alcohol, wear khadi kurta and blue jeans, but stand against arbitrary power. Removing the Gandhi poster, too, does not disqualify any citizen from accessing Gandhi. The political activist Ram Manohar Lohia had questioned this ‘priestly Gandhism’ which is ‘so well integrated with the governmental that it has not struggled against any kind of injustice in all the many years.’ My point is that we cannot impose a moral threshold to access Gandhi. Gandhi must be accessible to all.
However, invoking ‘satyagraha’ always brings Ambedkar’s critique of this method as ‘grammar of anarchy’ as he suggested that ‘We must abandon the method of civil-disobedience, non-cooperation and satyagraha’ and we must ‘hold fast to the constitutional method.’ However, the Indian masses have resorted to these peaceful methods whenever the Constitution fails to trickle down to them, as seen during the Narmada Bachao Andolan and the Shaheen Bagh Protests. It comes very intuitively to the Indian public psyche as a means to protest whenever they feel that the Constitution and its mechanisms do not listen to them.
Now, the question comes: should Satyagraha be invoked against our own judicial system? Constitutional law scholar Gautam Bhatia, while writing the critique of Justice D.Y. Chandrachud’s tenure, termed it as ‘A conversation with Carl Schmitt.’ Schmitt was a right-wing authoritarian thinker. Bhatia argues that the tenure was marked by a ‘judicial state of exception’ in which the normative and prerogative courts existed side by side, while the prerogative court enabled the executive to unilaterally alter the constitutional framework and suspend the federal form, and supported flattening all kinds of constitutional pluralism.
This crisis of the judiciary, or ‘judicial state of exception’ has become pervasive. The Schmittian framework of ‘decisionism’ or ‘pure theory of will’, as one scholar called it, has exacerbated this crisis for the Indian judiciary. The Judicial System needs introspection, in tandem with constitutional principles, so that recourse to non-cooperation and satyagraha can be avoided. In this regard, Justice Swarana Kanta Sharma's recusal would have been a significant step toward restoring the faith of litigants and citizens. And yet, the boycott represents a dwindling faith in the judicial system by political opponents and dissidents. In the famous Motihari trial in 1917, Gandhi showcased an adherence to the colonial legal regime while questioning its legitimacy. To what extent that form of disobedience can be replicated in a ‘judicial state of exception’ remains to be seen.
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