And, It Must Also Be Seen to Be Done

Public confidence is the foundation on which constitutional institutions function. The Election Commission of India, entrusted with the conduct of free and fair elections, must enjoy the confidence of citizens. The judiciary, particularly the Supreme Court, must similarly function in a manner that leaves no room for doubts about its independence and impartiality. It is in this context that recent reports concerning Justice Satish Chandra Sharma of the Supreme Court and his son, Amit Sharma, have attracted attention.

Amit Sharma is reported to be a Standing Counsel for the Election Commission of India in the Madhya Pradesh High Court. At the same time, Justice Sharma was part of the Bench that heard the challenge to the 2023 law governing the appointment of the Chief Election Commissioner and other Election Commissioners. The coincidence has raised questions about a possible conflict of interest and the appearance of judicial impartiality.

The fact that a judge’s son represents the Election Commission, by itself, does not establish that the judge has acted with bias. Any such allegation must be supported by evidence. The issue, therefore, should not be reduced to a personal allegation against the judge or his family. The larger question is whether all possible conflicts of interest are disclosed and dealt with transparently, particularly when constitutional institutions are involved.

The issue is significant also because of the nature of the 2023 law. Parliament replaced the earlier arrangement suggested by the Supreme Court in the Anoop Baranwal case, under which the Prime Minister, the Leader of the Opposition and the Chief Justice of India were to be part of the selection process. Under the new law, the selection committee consists of the Prime Minister, a Union Minister nominated by him, and the Leader of the Opposition in the Lok Sabha. The replacement of the Chief Justice of India by a Union Minister has been a central point in the constitutional challenge to the legislation.

The case was heard by a Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma. On September 23, the two judges differed on whether the matter required consideration by a larger Constitution Bench. Justice Sharma favoured placing the issue before a Bench of five or more judges, while Justice Datta took the view that such a reference was not necessary. The matter consequently went before the Chief Justice of India. There was, therefore, no final determination on the constitutional validity of the law on that day.

In matters such as these, actual impartiality is important, but the appearance of impartiality is equally important. If a close family member of a judge is professionally representing an institution connected with a matter before the court, complete disclosure of the relationship can strengthen public confidence. Where necessary, the concerned parties should have an opportunity to raise their concerns. At the same time, the professional association of a family member cannot, on its own, be treated as proof of judicial bias.

The larger concern is institutional rather than personal. The independence of the Election Commission, the transparency of its functioning and the safeguards against conflicts of interest within the judiciary all deserve clear rules and public scrutiny. Constitutional institutions derive their authority not merely from law, but also from the confidence of citizens.

In a democracy, institutions must therefore be both independent and demonstrably independent. Facts must be placed in the public domain, potential conflicts must be addressed transparently, and appropriate ethical safeguards must be strengthened wherever necessary. The objective should not be to prejudge individuals, but to protect institutions. Justice must not only be done; it must also be seen to be done. Public confidence in that principle is indispensable to a functioning constitutional democracy.