न्यायाधीश शर्मा का बहिष्कार वाद: भारत की न्यायिक नैतिकता पर नया सवाल

In 1998, the former Chilean dictator Augusto Pinochet was fighting extradition from Britain to Spain, where proceedings had been initiated against him over allegations of torture and other grave human rights violations during his years in power. Britain’s highest court appeared to have settled an important part of that battle when the House of Lords ruled, by three votes to two, that Pinochet could not claim immunity from prosecution.

The decision soon ran into a problem that had little to do with the merits of Pinochet’s defence. One of the judges in the majority, Lord Leonard Hoffmann, was chairman and one of only two directors of Amnesty International Charity Limited, a charitable company closely associated with Amnesty International, which had intervened in the litigation against Pinochet.

Hoffmann received no remuneration from the charity, and there was no allegation that he had consciously favoured Amnesty. Yet his association was substantial. He had been a director since 1990, and his wife had worked at Amnesty’s international secretariat since 1977. These connections emerged only after the judgment had been delivered.

The House of Lords nevertheless set aside its own judgment and ordered the appeal reheard. Lord David Hope explained that Hoffmann’s links with Amnesty were of such duration and proximity that he “could not be seen to be impartial”, even though there was no suggestion of actual bias or pecuniary interest.

The significance of Pinochet lies in this separation between personal dishonesty and institutional legitimacy. A court can conclude that a judge ought not to have sat without concluding that he consciously manipulated the outcome. Nearly three decades later, questions around Supreme Court Justice Satish Chandra Sharma offer an opportunity to examine how India deals with the same boundary between actual bias, apparent bias, disclosure, and recusal.

Family ties and disclosure

The Madhya Pradesh High Court’s official advocates database lists Siddharth Sharma, reported to be Justice Sharma’s son, as standing counsel for the Election Commission of India (ECI) from July 10, 2024. The official entry records the ECI as his department, his enrolment number (1111/2017) and the date of engagement. Justice Sharma has since sat with Justice Dipankar Datta on petitions challenging provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The litigation follows the Supreme Court’s Constitution Bench judgment in Anoop Baranwal v. Union of India (2023). In that case, the court directed that, until Parliament enacted a law, appointments to the Election Commission should be made on the recommendation of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. Later in 2023, Parliament replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister.

The current challenge before the Supreme Court questions, among other things, whether that arrangement sufficiently safeguards the independence of the ECI. An earlier Supreme Court order in the same litigation recorded the argument that Section 7(1) of the 2023 Act altered the mechanism devised in Anoop Baranwal and could affect transparent, free, and fair elections.

After extensive hearings, Justices Datta and Sharma disagreed on September 23 over whether these constitutional questions required consideration by a larger bench. Justice Datta considered a Constitution Bench (CB) reference unnecessary, while Justice Sharma concluded that substantial questions of constitutional interpretation required consideration by at least five judges, the minimum strength of a CB. Since sending the disagreement first to three judges (as required by the rules of reference and convention) could produce another reference and further delay, the two judges directed that the matter be placed before the Chief Justice of India for considering the constitution of an appropriate bench.

The controversy arising from Siddharth Sharma’s professional association with the ECI needs to be framed with care. He was not appearing before his father in the Supreme Court proceedings, and acting as standing counsel for an institution in one High Court does not make him counsel in every case concerning that institution across India. The question that remains is whether a continuing professional relationship between an immediate family member and an institutional litigant should, in circumstances such as these, be disclosed before the case is heard.

Indian recusal jurisprudence makes clear that proof of actual bias is not the only concern. In Ranjit Thakur v. Union of India (1987), the Supreme Court said that the proper approach is not for the decision-maker simply to ask himself whether he is biased, but to consider whether the circumstances create a reasonable apprehension of bias in the mind of the party.

The Supreme Court has also recognised the Restatement of Values of Judicial Life, adopted by the Chief Justices’ Conference in 1999, as part of the ethical framework governing judicial office. In its 2019 judgment concerning access to information held by the office of the Chief Justice of India, the court described the restatement as a “guiding light” for the dignity and ethics expected of judges and placed it alongside the Bangalore Principles of Judicial Conduct, which identify impartiality, integrity, and propriety among the central values of judicial office.

The difficulty is that contemporary legal practice creates connections far more scattered than the obvious situation in which a judge’s child appears before the parent. Governments, regulators, constitutional bodies, and corporations retain panels of lawyers across several States and jurisdictions. A family member may have an institutional client without handling the particular litigation before the judge they are related to.

For that reason, disclosure and recusal should not be synonymous. Disclosure brings the relevant relationship into the open, while the decision whether the judge should withdraw can rest on the proximity of the connection, the nature of the retainer, any financial interest, the issues involved, and whether the circumstances could create a reasonable apprehension about impartiality. A rule requiring recusal for every remote professional association could itself become vulnerable to manipulation by litigants seeking a different bench.

A Supreme Court episode earlier this year demonstrates how conflicts can emerge even when there is no suggestion of conscious concealment. In Alchemist Asset Reconstruction Company v. Raju Chappakal Pappu, a bench comprising Justices J.B. Pardiwala and K.V. Viswanathan completed arguments and reserved judgment on March 17, 2026. After the judgment had been reserved, it came to Justice Viswanathan’s notice that, during his career at the Bar, he had appeared for the appellant in a related Corporate Insolvency Resolution Process involving the principal borrower.

On April 1, the bench recalled the order reserving judgment and directed that the matter be placed before another bench. The episode illustrates the limits of memory as a conflict-checking device. A judge elevated after decades of practice may have represented hundreds of clients across thousands of proceedings. Companies change names, disputes pass through several forums, and old professional associations may not immediately register when a case appears years later.

Lessons from the US

The US encountered this problem on a much larger scale through an investigation by The Wall Street Journal in 2021. The newspaper matched financial disclosures of federal judges with court dockets and found that 131 judges had presided over 685 cases between 2010 and 2018 involving companies in which they or members of their families owned shares. Congress responded with the Courthouse Ethics and Transparency Act of 2022, which tightened transaction-reporting requirements and increased public access to judicial financial disclosures.

The important insight was that the problem could not simply be described as being about corrupt judges. Federal law already required judges to withdraw when they or close family members possessed a financial interest in a party, but the machinery connecting investments and family holdings with the names appearing on court dockets repeatedly failed.

A different disclosure controversy developed around US Supreme Court Justice Clarence Thomas and billionaire Harlan Crow. In 2024, Thomas amended his 2019 financial disclosure to record two trips, while information subsequently obtained by the Senate Judiciary Committee identified additional Crow-funded private travel that the committee said had not previously been disclosed. Thomas had earlier maintained that, under the guidance then applicable, he understood that personal hospitality from close friends did not require disclosure. These remain congressional findings and contested ethics questions rather than a judicial finding of corruption.

The US Supreme Court issued its first written Code of Conduct for Justices in November 2023. The document acknowledged that some lower federal courts were already using software to conduct automated recusal checks and said the US Supreme Court would examine whether similar mechanisms could assist its justices. That possibility has since become reality. In February 2026, the US Supreme Court announced new software designed to compare information about parties and lawyers in a case with conflict lists maintained by each justice’s chambers. The court emphasised that the automated process would supplement rather than replace existing conflict checks.

Allocation of cases

The controversy involving Justice Sharma also contains a second, somewhat different institutional question.

On September 23, a bench of Justices Sharma and N. Kotiswar Singh heard Gautam Buddha Nagar District Magistrate Medha Roopam’s challenge arising from an Allahabad High Court judgment concerning the preventive detention of 24-year-old student Akriti Chaudhary under the National Security Act. The High Court had quashed the detention, strongly criticised the conduct of the district administration, awarded Rs.5 lakh as compensation and directed recovery of the amount from the District Magistrate and other officials found responsible.

Roopam is the daughter of Chief Election Commissioner Gyanesh Kumar, but the connection between her individual case and Siddharth Sharma’s ECI engagement is more remote than in the constitutional litigation that directly involved the commission. The more concrete question here concerns case allocation. The Supreme Court’s official roster separately classifies habeas corpus and preventive-detention cases, and those categories do not appear among the subjects ordinarily assigned to Justice Sharma.

His roster, however, expressly includes “any other matter specially assigned”, which means that the appearance of a preventive-detention matter before his bench cannot, by itself, establish an irregular allocation. But it does make the basis of any special assignment relevant when the listing itself becomes a matter of public controversy.

The proceedings also drew attention because the Supreme Court, on September 24, revised its interim order so that while the quashing of Chaudhary’s detention remained intact, the High Court’s strictures against Roopam and the District Magistrate, and its monetary direction, were stayed.

Courts do correct their orders, including substantive errors, and the fact that an order was revised cannot by itself sustain an inference about motive.

However, taken together, these episodes suggest that India would benefit from treating conflict identification as an institutional responsibility rather than leaving it almost entirely to individual recollection.

Judges could periodically provide confidential information concerning significant financial interests, substantial former professional relationships, and continuing institutional retainers involving immediate family members. Registry systems could compare that information against parties and institutional litigants when cases are filed or listed, so that any possible connection is identified before arguments begin. The judge would still decide whether the circumstances call for disclosure, recusal, or neither.

Such a framework would protect judges as much as litigants. The questions surrounding Justice Sharma, therefore, offer the Supreme Court an opportunity extending beyond this one judge and one family relationship. A clearer disclosure protocol, supported by an institutional conflict-checking mechanism, could address a problem that is likely to become more common as India’s judiciary, government institutions, and the legal profession become increasingly interconnected.

Judicial impartiality will continue to depend upon the integrity and judgment of individual judges, but maintaining confidence in that impartiality need not depend upon memory alone.

V. Venkatesan is a Contributing Editor at Supreme Court Observer.

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