‘If judges are threatened to remain silent to the liking of politically powerful persons, justice itself may become a casualty’: Justice Swarna Kanta Sharma initiates criminal contempt proceedings against Kejriwal, Sisodia and other AAP leaders

YESTERDAY, Justice Swarana Kanta Sharma read out an order initiating criminal contempt proceedings under Section 2(c) of the Contempt of Courts Act, 1971, against Arvind Kejriwal and other Aam Aadmi Party leaders, including Manish Sisodia, Durgesh Pathak, Sanjay Singh, for allegedly making defamatory and vilifying allegations against her on social media.

“A judicial order passed by this court displeased a politically influential accused. While the course legally open to him to take the matter to the Supreme Court was not taken by him. Instead, he carried the dispute to social media platforms where truth becomes secondary and amplification and intimidation to orchestrated narrative devoid of truth was clothed as democratic right to free speech,” she said. She also noted that portions of her lecture delivered at a law college were selectively edited and circulated online.

Consequently, the Court directed that the excise policy case be listed before the Chief Justice for assignment to an appropriate bench. Justice Sharma made it explicitly clear that this administrative transfer was not an acceptance of the recusal application, which remains rejected. She stated, “I stand by my recusal order... I would not change even a single word of what I said then,” adding that her decision reflects “judicial discipline... even if you do anything, I will still be fair to you. I am not hearing [the case] because I have drawn your contempt.”

“If in the name of judicial tolerance and silence such conduct is allowed to pass unchecked and judges are threatened into silence or compelled to render orders to the liking of political[ly] powerful persons, justice itself may become a casualty,” Justice Sharma said.

Why were the contempt proceedings initiated?

The contempt proceedings were initiated after the Court noted that the respondents had moved beyond the bounds of fair criticism and had allegedly engaged in a coordinated campaign of vilification and intimidation aimed at scandalising the judiciary and eroding public faith in the institution.

A key basis for the contempt action was the circulation of selectively edited videos of a lecture delivered by Justice Sharma at Mahatma Gandhi Kashi Vidyapith in Varanasi. The Court noted that these clips were manipulated by removing contextual details, including university banners, and were used to falsely suggest that the judge had claimed receiving “promotions” for attending programmes linked to the Rashtriya Swayamsevak Sangh (‘RSS’) or the Bharatiya Janata Party (‘BJP’). Justice Sharma clarified that the statements made in her original lecture referred to spiritual visits to Lord Shiva and the personal sense of growth or spiritual upliftment associated with those visits.

Justice Sharma held that Kejriwal had, on one hand, professed respect for the court within the courtroom, while allegedly orchestrating a campaign outside it to damage the reputation of the presiding judge. “The accused repeatedly stated that he holds utmost respect for this court as an individual judge and integrity of this court. This court reiterates that it has reiterated during the proceedings this court also respects all litigants and persons who appear before it,” she noted. However, she held that the respondents had attacked judicial independence by publicly alleging that the Court was incapable of deciding matters fairly because of ideological or political alignment. Statements suggesting that the outcome of the case was “foretold” or “tilted in one direction” were viewed by the Court as attempts to overawe the judiciary and undermine confidence in the adjudicatory process.

Justice Sharma also noted that the alleged attacks extended beyond the judicial office to her family members, including her children, despite their having no connection to the proceedings. She described this as one of the most disturbing aspects of the campaign and observed that it conveyed a message that a judge’s personal life and reputation would be publicly broken and vilified if judicial orders did not conform to the expectations of politically influential individuals.

Several statements by leaders of the Aam Aadmi Party, including Sanjay Singh, Saurabh Bharadwaj, and others, were also taken into account. The table below sets them out:

Court’s reasoning and observations

Justice Sharma acknowledged that every citizen has the right to criticise a judge or a judgement, while stating that the contempt proceedings were not initiated because the contenders disagreed with her order. She distinguished between fair criticism and a campaign intended to “poison the fountain of justice” by sowing seeds of distrust in the public mind regarding judicial impartiality. She further clarified that the order was “not an order either written with anger or evil against any litigant,” stating that it was the result of careful consideration and deliberation over several days before being pronounced.

She observed that she was confronted with two possible courses of action, first, to “conveniently remain silent” despite repeated public attacks on the integrity of the court, her judicial reputation, and her family, and the second, to take judicial notice of the alleged contemptuous conduct in clear and unequivocal terms. While acknowledging that silence might have been more comfortable, she said it would have amounted to an abdication of duty.

“While I asked myself whether the proposed contemnors had merely caused a private injury to me or whether they were in fact attacking a constitutional court so as to deter it from discharging its constitutional duty, I found the answer to be the latter,” Justice Sharma said.

The judge further remarked that allowing such conduct to go unchecked could lead to a situation where judges are pressured to decide cases in anticipation of public retaliation setting a dangerous precedent. “The message sought to be conveyed was that if a judge and its orders did not conform to the expectations of a powerful individual or a political force the judge and a reputation would be publicly broken and vilified. Such a message and campaign cannot be permitted to acquire legitimacy or sanity. If in the name of judicial tolerance and silence such conduct is allowed to pass unchecked and judges are threatened into silence or compelled to render orders to the liking of political[ly] powerful persons, justice itself may become a casualty,” she said.

The Court directed that the excise policy case be listed before the Chief Justice for assignment to an appropriate bench. Justice Sharma made it explicitly clear that this administrative transfer was not an acceptance of the recusal application, which remains rejected.

Remarks by Solicitor General

After the order was read out, Solicitor General Tushar Mehta requested the judge to continue hearing the excise policy case, warning that if she stepped away, it would establish an undesirable precedent for getting rid of an inconvenient judge. He described that the respondents had a habit of making wild allegations on public platforms without taking any responsibility for them and noted that instead of seeking a legitimate legal remedy in the Supreme Court, which they avoided because they knew they would lose, they took the dispute to social media to play a “victim card.”

He argued that the campaign was a message intended for every judge in the country: “if you do not toe our line, we will stigmatize you... we will castigate you... in public platforms.” In fifty years of Indian democracy, no politician had ever “stooped this low” to tarnish the entire institution with a false narrative, he contended.

Additional Solicitor General S.V. Raju also urged the judge to continue hearing the excise policy case.

However, Justice Swarana Kanta Sharma declined the request, stating that while hearing the matter she was conscious of the nature of the litigants and the prior proceedings in the case. She observed that allowing herself to continue hearing the matter could give rise to future allegations of bias or victimhood.

“Tomorrow he will say that he is a victim because the person who is drawing the contempt is against him and is hearing the case during the same time,” she added, underscoring her decision.

However, she maintained her earlier order rejecting the recusal, observing that allowing such a plea would set a problematic precedent. “I refused the recusal because you cannot choose your own judge,” she said, emphasising that litigants cannot be permitted to select the bench of their preference.

While concluding the order, Justice Sharma had noted that while individual “judges may come and go,” the institution of justice will be remembered by the orders and actions of those who did not permit the rule of law to “kneel before intimidation and fear” of manufactured public narratives,” adding that, “justice in Bharat has and shall remain fearless.”