Ideally Judges Children Should Avoid Government Panel Appointments, Says Supreme Court Justice Oka

The question of whether children of sitting judges should accept appointments as government lawyers has sparked intense debate in legal circles, with recent controversies exposing the delicate balance between family ties and judicial independence. Former Supreme Court judge Justice Abhay Oka has now weighed in, offering a clear framework that emphasizes self-restraint, transparency, and targeted recusal. His views, shared in a recent interview, provide practical guidance for judges and their families while underscoring the need to preserve public confidence in the judiciary.

The Context: A Series of Empanelment Controversies

The issue came to the fore after it emerged that Justice Satish Chandra Sharma’s son was empanelled as a counsel for the Election Commission of India (ECI). The revelation triggered questions because Justice Sharma had heard matters concerning the validity of the Chief Election Commissioner and Election Commissioners Act, as well as a case involving Medha Roopam, the daughter of the Chief Election Commissioner. Separately, Delhi Chief Minister Arvind Kejriwal sought the recusal of Delhi High Court Justice Swarna Kanta Sharma from the excise policy case, citing that her children were empanelled as Central Government lawyers. Justice Sharma rejected the plea, observing that such empanelment alone could not be a ground for recusal and that litigants cannot dictate how judges’ children should live.

Another instance involved the appointment of Justice P.K. Mishra’s son as Rajasthan Additional Advocate General, which was challenged on the ground that he lacked the requisite ten years of legal practice. Both the Rajasthan High Court and the Supreme Court declined to interfere.

These incidents highlighted the absence of a consistent ethical framework governing such appointments. Justice Oka’s intervention seeks to fill that void.

The Ideal: Self-Imposed Restraint Until Retirement

Justice Oka was unequivocal in stating that the ideal course for judges’ children is to avoid accepting any government panel appointment until the parent judge retires. “Ideal thing would be, judge’s children should avoid getting appointed to any government panel,” he said. However, he clarified that this cannot be enforced by law; it must be a matter of self-imposed restraint by the family. He noted that he has known children of Bombay High Court judges who kept a low profile until their parent retired, adding, “It is a question of members of family showing discretion. Ideally, when a parent becomes a judge, naturally there are some constraints on the family also. If they exercise that constraint, the issue will be solved.”

This approach, he emphasised, would preserve public confidence in the independence of the judiciary, as any appointment during a parent’s tenure raises questions about merit versus privilege.

When Appointments Are Made: The Need for Transparent Selection

Acknowledging that some appointments may still occur, Justice Oka stressed that institutions must follow a fair and transparent process. He called for clearly laid-down eligibility criteria, public invitations for applications, and a competitive selection process. “If somebody directly gets appointed as a panel member, and the person appointed is a son/daughter of a sitting judge, then naturally many questions are raised, whether the appointment was on merit or whether they secured it only by being in a privileged position,” he observed.

He argued that if a transparent process is followed, the concern over preferential treatment can be addressed. This principle applies to all government bodies, including the Enforcement Directorate, the National Investigation Agency, the Election Commission, and the Central and State Governments.

Disclosure vs. Automatic Recusal: A Nuanced Distinction

A key aspect of Justice Oka’s framework is the distinction between mandatory disclosure and automatic recusal. He stated that if a judge’s child is empanelled as a lawyer for a specific agency, the judge must disclose that fact and refrain from hearing any case involving that particular institution. “For example, if somebody’s son is an ED panel advocate, then the judge should not take up any ED case,” he explained.

However, this does not mean that the judge must recuse from all cases involving the government at large. “If there is a contested case, only because the son or daughter of a Judge is empanelled, the Judge need not recuse, but he can always point out, my child is empanelled. Disclosure is one thing, automatic recusal is another. I don’t think automatic recusal is needed merely because son/daughter is a government panel advocate,” he clarified.

Thus, the obligation is specific: recusal only from cases where the child’s employer (the agency) is a party. For broader government cases, disclosure suffices unless the child actually appears as counsel in the matter.

The Sharma Controversy: A Failure to Disclose

Justice Oka directly addressed the controversy surrounding Justice Satish Chandra Sharma. He stated plainly, “Justice Sharma should have disclosed at the outset.” The non-disclosure, he noted, deprived litigants of the opportunity to seek recusal had they known of the relationship. Since no decision on merits had been rendered in the ECI-related matter, technically no judgment needed to be recalled. But Justice Oka warned that if a case had been decided and the relationship later came to light, a party could argue that the lack of disclosure denied them the chance to move for recusal. “There can be an argument that had it been disclosed, then the party would have had an opportunity to seek recusal and they were deprived of that opportunity. That can be the only ground,” he said.

This underscores the critical importance of proactive disclosure as a safeguard against procedural unfairness.

Broader Implications for Judicial Practice

Justice Oka’s observations carry significant weight for the legal community. They provide a practical roadmap for judges grappling with family members’ professional choices. The emphasis on self-restraint by families, combined with transparent selection processes and targeted recusal, offers a balanced solution that does not unduly restrict the careers of judges’ children while protecting judicial integrity.

For litigants, the framework clarifies the limited circumstances in which recusal is warranted. It also highlights the potential consequences of non-disclosure, particularly the risk that judgments may be challenged on that ground. Courts may now be more vigilant in ensuring that judges disclose any empanelment of close relatives with parties appearing before them.

Conclusion

Justice Abhay Oka’s intervention brings much-needed clarity to a vexed issue. By advocating self-imposed restraint, transparent appointments, and disclosure with targeted recusal, he strikes a balance between family interests and the paramount need for an independent judiciary. The onus, he suggests, is not only on judges but also on their families and on the institutions that appoint panel lawyers. As the legal community absorbs these insights, the path forward will require a collective commitment to upholding the highest ethical standards—lest even the appearance of impropriety undermine public trust in the justice system.