Introduction:
In a development that once again places the Delhi excise policy litigation at the center of national legal attention, the Delhi High Court, while hearing CBI v. Kuldeep Singh & Ors., indicated that it would appoint three senior advocates as amicus curiae to represent three key accused who have chosen to boycott the proceedings. The proposed amicus appointments concern Arvind Kejriwal, Manish Sisodia and Durgesh Pathak, who declined participation in the hearing after Justice Swarana Kanta Sharma refused to recuse herself from the matter.
The case before the High Court arises from a revision petition filed by the Central Bureau of Investigation challenging an order of discharge passed by the trial court on February 27. That order had discharged all twenty-three accused persons in the alleged excise policy corruption case, including Kejriwal, Sisodia and K. Kavitha. The trial court had not merely discharged the accused but had also made severe observations regarding the quality of the investigation conducted by the CBI.
The controversy surrounding the excise policy case has been politically and legally significant. The 2021–22 excise policy was introduced by the Delhi Government as a structural reform aimed at increasing revenue and reshaping the liquor trade in the national capital. It was later withdrawn after allegations surfaced that the policy had been manipulated to extend undue benefits to private players. Following these allegations, Delhi’s Lieutenant Governor Vinai Kumar Saxena directed a CBI inquiry.
The prosecution case broadly alleges that the policy, which sought extensive privatization of liquor trade in Delhi, was framed and implemented in a manner that conferred unlawful advantages on selected private entities, causing loss to the public exchequer. Based on these allegations, the CBI and the Enforcement Directorate initiated parallel criminal proceedings.
The matter acquired enormous public visibility when Sisodia was arrested by the CBI on February 26, 2023, and later by the Enforcement Directorate on March 9, 2023. He remained in custody for approximately 530 days. Kejriwal was formally arrested by the CBI on June 26, 2024, while already in custody in connected money laundering proceedings. His arrest took place during the politically sensitive period surrounding the 2024 Lok Sabha elections. He was later granted bail by the Supreme Court of India after 156 days in custody.
The present phase of the litigation concerns the High Court’s scrutiny of the trial court’s discharge order. However, what might ordinarily have remained a revision hearing has taken on a constitutional and procedural dimension after some accused sought recusal of the presiding judge, alleging apprehension of bias. Following dismissal of those recusal applications, three accused chose to boycott the proceedings altogether. The High Court has now responded by indicating that senior counsel will be appointed as amici curiae to preserve the fairness and integrity of the adversarial process.
Arguments of the Parties:
The revision petition before the High Court has been instituted by the Central Bureau of Investigation, which seeks reversal of the discharge order passed by the trial court. Although detailed final arguments are yet to begin, the broad position of the CBI is evident from the procedural history and prior submissions.
The CBI contends that the trial court erred in discharging the accused and in making sweeping adverse remarks about the investigation at a stage where only a prima facie assessment was required. The agency maintains that there was sufficient material to justify continuation of criminal proceedings and that the trial court exceeded the permissible limits of scrutiny while evaluating the record.
Earlier, when the matter came up before Justice Swarana Kanta Sharma, the Court had prima facie observed that certain findings of the trial court appeared erroneous. This preliminary observation later became central to the respondents’ apprehension that the Court had already formed a view adverse to them.
On behalf of the accused, especially Kejriwal and Sisodia, the immediate procedural objection was not confined to the merits of the revision petition but focused on the neutrality of the adjudicatory forum. Applications seeking recusal of Justice Sharma were filed on the ground of reasonable apprehension of bias. The argument essentially was that certain prima facie observations made by the Court while issuing notice in the revision petition created an impression that the matter may not receive an open and detached reconsideration.
The accused relied upon the broader principle that justice must not only be done but must also appear to be done. Although judges are not expected to recuse merely because one party perceives adverse remarks, the respondents sought to invoke the doctrine of institutional fairness and litigant confidence in judicial proceedings.
Justice Sharma, however, dismissed the recusal applications and declined to step aside. Following that order, Kejriwal and Sisodia addressed communications to the Court stating that they would not participate in the proceedings either personally or through counsel. Their position effectively amounted to a boycott of the hearing.
This boycott raised a fresh legal problem. In a criminal revision involving serious allegations and substantial consequences, the absence of representation for principal respondents creates an imbalance in adversarial adjudication. The Court was therefore confronted not only with a dispute over recusal but also with the practical question of whether it could proceed to hear the prosecution alone.
From the perspective of the prosecution, the absence of the respondents could not indefinitely stall judicial proceedings. The CBI, having invoked the revisional jurisdiction of the High Court, was entitled to have its challenge heard. At the same time, fairness demanded that the absent respondents should not suffer adverse consequences merely because they chose not to appear.
This procedural tension lies at the heart of the present stage of the litigation.
Court’s Judgment:
Justice Swarana Kanta Sharma adopted a measured course that reflects the court’s institutional responsibility to preserve both fairness and continuity of proceedings. Rather than immediately hearing the CBI’s arguments in the absence of the contesting respondents, the Court indicated that it would appoint three senior advocates as amicus curiae to represent respondents 8, 18 and 19—namely Kejriwal, Sisodia and Pathak.
The significance of this decision lies not merely in the mechanics of legal representation but in the underlying principle of adversarial justice. Criminal proceedings, especially those involving questions of discharge, liberty, and public office, require robust adversarial participation. A one-sided hearing, even where occasioned by voluntary non-participation of one party, risks undermining confidence in the fairness of the outcome.
The Court expressly noted that it would be appropriate to hear the CBI’s submissions only after the amicus curiae are appointed. This approach is rooted in the judicial duty to ensure that arguments against the prosecution’s case are placed before the Court, even if the accused themselves decline to participate.
The contemplated appointment of amici curiae serves several important legal functions.
First, it ensures that the High Court does not decide a politically sensitive and legally consequential criminal revision in the absence of countervailing submissions. Even where parties boycott proceedings, courts remain under an obligation to ensure substantive fairness.
Second, it preserves the legitimacy of the judicial process. A decision rendered after hearing only the investigating agency in such a high-profile matter could invite criticism not merely on political grounds but on procedural fairness. By appointing independent senior counsel, the Court insulates the process from such criticism.
Third, the step reflects a balance between judicial authority and litigant autonomy. The Court has not accepted that parties can effectively paralyze proceedings by refusing to appear. Nor has it proceeded in a manner that disregards the consequences of their absence. Instead, it has chosen an intermediate course that upholds the authority of the court while protecting the integrity of adjudication.
At this stage, the High Court has not yet pronounced on the merits of the CBI’s revision. It has not decided whether the trial court’s discharge order was correct, nor has it finally assessed the legality of the observations made by the trial judge regarding the investigation.
However, the procedural order itself is legally noteworthy. It reaffirms that recusal jurisprudence cannot be transformed into a tool for forum selection. Once a judge declines recusal, parties cannot ordinarily dictate the course of proceedings by non-participation. At the same time, courts must remain vigilant to ensure that absence of a party does not result in a hearing that appears one-sided.
The matter is expected to progress once the names of the amicus curiae are formally indicated. The Court has signaled that only thereafter will substantive hearing commence.
From a broader constitutional perspective, this episode reflects an enduring tension in public law litigation: the balance between judicial independence, litigant confidence, and the orderly administration of justice. High-profile criminal cases often test not only evidentiary standards but also the resilience of procedural institutions.
The Delhi High Court’s present approach demonstrates a preference for process-based legitimacy. In matters where political stakes are high and public scrutiny is intense, the fairness of procedure often becomes as significant as the ultimate result.
For now, the legal question is not whether the discharge order will survive, but whether the revisional process itself will remain visibly fair, balanced, and institutionally credible. The High Court’s answer, at least at this stage, is that fairness cannot depend solely on the willingness of parties to participate; where necessary, the court itself will ensure that the adversarial structure remains intact.