New Delhi: The decision by former Chief Minister Arvind Kejriwal to boycott court proceedings in the liquor policy revision petition filed by the CBI comes at a critical juncture, as the Delhi High Court is poised to examine the merits of the case and commence arguments from both the prosecution and defense.
Justice Swarana Kanta Sharma, after dismissing petitions seeking her recusal from the case, had scheduled the matter for later this week. This indicates her intention to address the substantial questions raised by the CBI, having dealt with the recusal applications.
With Kejriwal announcing his refusal to participate in further proceedings, there is a strong possibility that the High Court may exercise its option to appoint an amicus curiae, or friend of the court. This would ensure the matter is heard and decided on its merits, allowing for a fair evaluation of all legal contentions.
A key reason for this potential move is the Supreme Court's clear mandate, reiterated in several rulings, that criminal revisions or appeals cannot be dismissed in default. There is no procedure to end a case without hearing the parties, even if they remain absent. The apex court has emphasized that such matters must be decided on merits, casting it as the duty of the court. As one retired High Court judge explained: "No order can be passed without hearing the affected party, as it deals with his rights and liabilities. Therefore, an opportunity must be given. Constitutional courts have laid down that a 'reasonable opportunity' can be provided, which is the duty of the court concerned. However, this cannot be forced upon the party. It is up to the respondent to avail that opportunity, but if he does not, the court is still obligated to decide on merits."
The jurist also pointed out that in revision jurisdiction, the court is not meant to substitute the trial court's views with its own, but to rectify any blunder or perversity in the order being challenged.
Since none of those discharged have filed any written submissions or replies to the CBI's plea, the court may choose to first hear arguments from defense lawyers on this matter. The participation of the affected party is necessary to ensure a case is decided on merits. However, if a party chooses not to appear, an amicus can be appointed to review the record and present material relevant to the accused or respondent before the court, according to legal principles established by the Supreme Court.
A serving judge told TOI: "In cases where the accused or respondent cannot afford a lawyer, the court can appoint one. But here, since the former CM has announced he will boycott proceedings, the court can compel his presence through a bailable or non-bailable warrant. There is also a likelihood it may appoint an amicus to ensure all strands of legal arguments on behalf of the accused are heard and examined. Usually, senior advocates with great legal standing and expertise in their field are appointed by courts in such matters." The judge recalled a recent case where a person facing terror charges was assigned an amicus from legal aid services because the accused refused to hire a lawyer.
Former Additional Solicitor General Aman Lekhi commented: "A judge has many options and the discretion to decide whether to take cognizance of this as contempt or not. However, if good sense prevails, as I believe it will, the court may choose to disregard the letter, inappropriate as it is, because this is not the proper way to raise legal grievances. There is a due legal process to address grievances, and all mechanisms are in place. The system is functional. It was open to him to follow those steps and seek a remedy under the law, which he has chosen not to do. In my opinion, it is not only distasteful and inappropriate, but also unlikely to yield any favorable outcome for him on any parameter."
