The order passed by Delhi High Court on 14 May 2026 subsequent to the order dated 20 April 2026 in the matter of Shri Arvind Kejriwal, Former Chief Minister of Delhi has raised more questions than the issues decided.
The practice of seeking recusal of the Judge is quite old, be in the Court of Subordinate Judge or the Constitutional Courts. Some litigants wish that the judge, hearing their matter should be of their liking. Generally, the litigant is tempted to engage an Advocate relative, who cannot appear in the court of his relative judge. This practice was subject matter of consideration in a matter where son had put an appearance in the matter listed before his father[1], the court said, “It is better that in such circumstances the advocate son rather than a Judge father withdrawn from the case”. But the malice continues as the litigant is tempted to indulge in “forum shopping”.
There are instances where the applications are filed alleging bias to seek transfer, generally before the Higher Court. I have never had the occasion to deal with such an application, though occasionally, the Learned Counsel for a party has made mention for a recusal.
Why was such an application filed?
A request was made to the Hon’ble Chief Justice of Delhi High Court to transfer the matter in question. But once, a mater is assigned to Judge, the transfer of a matter is not permissible. Such a request was not accepted. A Writ Petition was filed before the Supreme Court but withdrawn on 15 April 2026, when it was til in the Registry. But then, it appears that it was decided to file such an application and that Shri Kejriwal will appear in person. Taking advantage of his status as that of a former Chief Minister, he could take liberty with the Court. Here the Hon’ble Judge fell into trap.
Any Litigant will shudder to make any application in writing and before the same Court as any such application may be decided summarily. But some people are more equal than the others. In any other situation, the Court would have declined such a request with a short order but because of the status enjoyed by Shri Arvind Kejriwal, the Court was indulgent to hear him out. He got an opportunity to level allegations personally against the Judge and her family, and at her cost, to get wide publicity in media. An opportunity, a politician is always look forward.
The Supreme Court[2] held that it has not only
“the right to protect itself from being denigrated, but has also the right, jurisdiction and authority to protect the High Courts and the subordinate courts from being insulted, abused or in any other way denigrated. All the courts, be they the lower or the highest, function for the noble cause of dispensing justice. Since they have to decide litigation between two contesting parties, it is obvious that they have to have full freedom and independence in settling the litigation. The Presiding Officers who run the courts and conduct the proceedings therein have to act fearlessly. Any action on the part of any person or litigant or lawyer, which tends to interfere or obstruct the process of justice, has to be deprecated so that the proceedings may be held in an orderly fashion and everyone who participates in those proceedings may have the feeling of liberty to address the court for proper adjudication of his case.”
An advocate, as a citizen of this country, has the fundamental right of freedom of expression and speech under Article 19 of the Constitution. This right is also guaranteed to him under the Advocates Act. Apart from that, the legal profession has the inherent right to express itself in the best manner possible in uninhibited language, but the right to express also carries with it the duty to be dignified in the use of expression and to maintain decorum and peace in the court proceedings.
The Supreme Court[3] in respect of transfer petition filed in a matter before a Trial Court held that “He has to perform his duty and not succumb to the pressure put by the accused by making callous allegations. He is not expected to show unnecessary sensitivity to such allegations and recuse himself from the case. If this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process. The unscrupulous litigants will indulge themselves in court hunting. If they are allowed such room, they do not have to face the trial before a court in which they do not feel comfortable. The High Court has gravely erred in this regard.”
Dealing with the conduct of lawyers and litigants in the Court[4], quoting from its earlier judgment held “It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because a lawyer appears as a party in person, he does not get a licence thereby to commit contempt of the court by intimidating the Judges or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for upholding the majesty of law. Judges and courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of court by the use of objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.”
The malice to choose a judge was prevalent in one of the High Courts, more than 30 years back. The litigant or his lawyer would carry his case papers before a particular Judge and if he is not inclined to grant desired relief, he will take back his papers back to present before the other Court. This was an obvious forum shopping. But luckily this practice has come to an end may be about 30 years back.
Mamata Banerjee was first Chief Minister who had filed a writ petition in her name, appeared in-person before the Hon’ble Supreme Court. The path to appear in person was settled. The status enjoyed by the Former Chief Minister was used by him by appearing in-person. A litigant who seeks recusal of the Judge will get an order of declining such a request for recusal. But the privilege and status as a former Chief Minister, was used to level allegations, where litigant would dread.
What I fear is, that this practice of prominent person to appear in-person is going to rise in future. The Court cannot shut a litigant to appear in-person but he should be treated in the same manner as are other mortals. The Court starts giving indulgence to so called prominent persons, it emboldens them. The Court should have passed a short order declining request. It would have been open to the aggrieved person to approach higher forum.
The appearance of the prominent personalities in Court gives them a platform, which gives a wider reach in the era of media covering the Court proceedings and the life streaming of the Court proceedings. These are the danger, which Court must protect itself. Such prominent person is in fact addressing not the Court but the media and his voters. The Court has to be careful of this tendency not to provide a platform for dramatics or theatrics. Such request should be dealt with contempt they deserve and not the indulgence. Supreme Court[5]: said that
“Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go “forum-shopping”. A litigant cannot be permitted “choice” of the “forum” and every attempt at “forum-shopping” must be crushed with a heavy hand.”
Judiciary should remain insulated from this kind of theatrics where the Court who is not trained to deal with such actions should fell prey to it. Keeping in view, the principle of Article 14, law has to be applied equally to all citizens and not that the application of law becomes different for few. A litigant, small or big, have to be dealt with in the same manner. A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and public confidence in it.
I am apprehensive that this trend of appearing in-person will increase so is the theatrics in Court but the Judges are not trained to meet these challenges. I would expect the Judges to deal with all these cases and personalities in the same manner as Judges deal a case of a litigant.
*Former Judge, Supreme Court of India
[1] (1984) 4 SCC 217 Satendra Narain Singh Vs. Ram Nath Singh
[2]Ajay Kumar Pandey, Re, (1996) 6 SCC 510
[3] Usmangani Adambhai Vahora v. State of Gujarat, (2016) 3 SCC 370
[4] Chetak Construction Ltd. v. Om Prakash, (1998) 4 SCC 577
[5]Chetak Construction Ltd. v. Om Prakash, (1998) 4 SCC 577