Invoking ‘Satyagraha’ in a Judicial State of Exception: Reflections on the Kejriwal recusal plea

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. 

‘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.