Justice must not only be done but must also be seen to be done. Examine this principle in the context of disclosure of conflicts of interest by judges.

The Supreme Court's Restatement of Values of Judicial Life (1997) states that justice must not merely be done but must also be seen to be done [1]. Courts have no army and no money of their own, so their authority depends on public trust. When a judge discloses a possible conflict of interest, that trust can be seen and checked.

Why disclosure is central to the principle

• Test of apparent bias: under nemo judex in causa sua (no one may judge their own cause), a party only has to show that a fair-minded observer could reasonably suspect bias. Proof of actual bias is not needed.
• Party choice: disclosure lets the parties object or waive. Recusal (the judge stepping aside) then becomes a decision taken in the open.
• Shields the judge: a link that was disclosed and accepted cannot be used later to attack the judgment.
• The Restatement already warns judges against close association with members of the Bar [1].

Recent illustration

• An application seeks recall of Justice S.C. Sharma's opinion in the challenge to the CEC and Other ECs Act, 2023. The ground is that he did not disclose, over several hearings, that his son is the Election Commission's standing counsel [2].
• The stakes are high because the Act gives the government two of the three seats on the selection panel [3]. With the EC's independence under review, the Bench must look visibly neutral.

Limits and counter-arguments

• No codified procedure: recusal is left to each judge's conscience, and the judge facing the objection usually decides it.
• Over-recusal risk: if every relative's retainer forced recusal, it would become hard to form Benches.
• Tactical timing: the objection came only after the opinions were delivered [2]. Pleas filed after a ruling can be used for forum-shopping.
• Remoteness: a general retainer is not the same as appearing in the case itself.

Way forward

• The Full Court should add mandatory on-record disclosure at the first hearing to the Restatement.
• Contested objections should go to another Bench or the CJI.
• Disclosure should be mandatory, while recusal remains a reasoned decision. Reasons for recusal decisions should be recorded.

Disclosure turns impartiality from something the judge privately feels into something the public can check. A simple, codified disclosure rule would protect litigants and judges alike. It would also uphold the Constitution's promise of justice in the Preamble and Article 14's guarantee of fairness.