The recusal question: Arvind Kejriwal plea sharpens bias vs duty debate

Kejriwal's recusal plea against a Delhi HC judge highlighted gaps in India's uncodified framework governing judicial bias and impartiality

In one of the first cases of its kind, Arvind Kejriwal, national convener of the Aam Aadmi Party (AAP), and five others petitioned the Delhi High Court to seek the recusal of Justice Swarna Kanta Sharma from hearing the excise policy case. Kejriwal, in his plea, said he did not expect a fair hearing before her.

 

Justice Sharma rejected the plea, saying the application created a “Catch-22 situation” in which any outcome would be questioned by the applicants. Judicial decisions, she said, must rest on legal and factual grounds, not on perceptions.

 

While both Kejriwal and the judge acted within India’s constitutional framework, the episode, experts said, exposed a key gap in the legal system: The country has no codified statutory regime governing judicial recusal.

 

Instead, the doctrine of recusal draws on constitutional conventions, common law principles and the rules of natural justice, leaving judges to balance impartiality against their duty to hear cases. “The governing jurisprudential touchstone remains the maxim nemo judex in causa sua — no one should be a judge in their own cause,” said Yash Joglekar, counsel at the Bombay HC. The doctrine extends beyond actual bias to situations where a fair-minded observer could reasonably perceive partiality, he said. Citing Supreme Court (SC) rulings, Joglekar said the test is not whether bias exists, but whether it appears to exist — a distinction aimed at preserving institutional legitimacy and public confidence in the justice system.

 

Courts, however, have repeatedly cautioned against litigants attempting to force recusals. “Recusal remains rooted in judicial conscience, constitutional propriety and institutional discipline,” Joglekar said, adding that it must be weighed against a judge’s “duty to sit”.

 

Grounds and limits

 

Legal experts say recusal is generally invoked when a judge’s continued involvement could create a legitimate perception of compromised neutrality. The clearest category is pecuniary interest, where a judge has a direct or indirect financial stake in the outcome. “Common grounds include financial interest, family or personal relationships, or prior professional involvement, such as having appeared as counsel in the same matter,” said Apeksha Lodha, partner at Singhania & Co.

 

The doctrine, however, has limits. Courts have drawn a distinction between legitimate concerns and speculative allegations. “Recusal is not about comfort — it is about institutional integrity,” said Anushkaa Arora, founder of ABA Law Office, noting that ideological disagreements or prior adverse observations do not usually justify withdrawal. That caution reflects concerns over “Bench hunting”, where litigants seek to disqualify judges in pursuit of a more favourable Bench. The SC has repeatedly warned that recusal cannot become a litigation tactic that undermines roster discipline.

 

How the practice evolved

 

In the absence of a statutory framework, India relies largely on ethical norms and judicial precedent. “There is no codified law governing recusal of judges in India. The framework is based on natural justice, judicial ethics and case law,” said Harsh K Sharma, founder of Prosoll Law.

 

He pointed to SC rulings that distinguish between automatic disqualification in cases of financial interest and the broader “reasonable apprehension” test applied elsewhere.

 

Ethical guidance has also emerged through instruments such as the Restatement of Judicial Values (1999) and the Bangalore Principles of Judicial Conduct (2002), which stress that impartiality applies not only to judicial decisions but also to the process through which they are reached. The principles say judges should step aside where impartiality may reasonably be questioned, while warning against overuse of recusal.

 

Courts have also said judges should ideally disclose reasons for recusal to avoid speculation and maintain transparency.

 

Cases that shaped the debate

 

Several high-profile episodes have brought the doctrine under scrutiny. Among the most prominent was Justice J S Khehar’s refusal to recuse himself from the Constitution Bench hearing the National Judicial Appointments Commission case, despite objections linked to his earlier involvement in judicial appointments. The decision was widely viewed as a rejection of forum shopping.

 

More recently, recusals — and refusals to recuse — in politically sensitive matters have intensified scrutiny of the doctrine. In September last year, 15 judges recused themselves from matters involving Ramon Magsaysay Award-winning Indian Forest Service officer Sanjiv Chaturvedi in a contempt case against members of the Central Administrative Tribunal.

 

A doctrine in balance

 

The doctrine seeks to reconcile two competing imperatives: Ensuring that justice is not only done but seen to be done, while preventing litigants from manipulating the judicial process. “The balance is delicate: Fairness versus judicial duty,” Arora said.