NCLAT judge recuses over his brother’s text

In an extraordinary turn of events, a judicial member of the National Company Law Appellate Tribunal (NCLAT) recused himself from a case, revealing that his brother approached him via text messages regarding the matter. The text, which sought advice on the case being heard by the member’s bench, was reproduced verbatim in the judicial order passed on November 18.

The order, passed by justice Sharad Kumar Sharma , the judicial member presiding over the NCLAT bench in Chennai, underscored the principle of judicial integrity and impartiality while highlighting the complexities that arise when familial relationships intersect with judicial responsibilities. The bench also included Jatindranath Swain as the technical member.

Justice Sharma, a former judge of the Uttarakhand high court, detailed in the order that his brother had sent WhatsApp messages discussing the case and seeking advice. The text message read, in part: “Brother, what can be in this paper that I am sending, what is the possibility of it happening, please try to give proper advice. This is a matter of your own court… If I have caused any kind of trouble, then I apologize.”

The message further sought relief related to quashing corporate insolvency resolution process (CIRP) proceedings, directing the return of the corporate debtor to its board, and ensuring commitments to operational creditors.

The sender added that the communication was a personal request and not an order: “There is no pressure of any kind because whatever decision you and the court take, we will accept it. I just request that you can reserve this matter as per your discretion, and if there is even the slightest scope, it will be better if you have complete information about it.”

The message, received by justice Sharma on the morning of November 18 , further stated: “I am requesting once again that I have no doubt on your thoughts, feelings, and decision and neither do I intend to hurt you. This is my first request that you accept it and reserve it.”

Acknowledging the personal nature of the request, justice Sharma expressed regret over the situation and stated in the order: “With a very sorry note, I refuse to hear this appeal. Let the matter be placed before the Hon’ble Chairperson for the nomination of another bench.”

Following justice Sharma’s disclosure, senior counsel PH Arvindh Pandian, representing the appellant, also chose to withdraw from the case. The order recorded: “Upon the aforesaid information being brought to the knowledge of the learned senior counsel for the appellant, he seeks to withdraw himself from the case. Permission as prayed for is granted.”

Advocate Abhishek Anand appeared for the liquidator in the case, which arose out of a previous order by the national company law tribunal in August 2022.

What makes this case stand out is the judge’s decision to reproduce the text message in its entirety within the judicial order. Judicial recusals generally arise from conflicts of interest, prior associations with parties or external pressures, among other reasons. It is uncommon for a judge to document and disclose a personal communication in such detail.

This incident also highlights the principle of conflict of interest in judicial proceedings, which mandates that judges must avoid any situation that could lead to a perception of bias. The judicial code of conduct requires judges to maintain impartiality and ensure that their decisions are based solely on the merits of the case.

To be sure, recusal is not governed by any official norms, and it is often left to individual judges to record reasons for recusal. Judicial recusals in India are rather guided by precedents and ethical norms.

In State of West Bengal Vs Shivananda Pathak (1998), the Supreme Court emphasised that justice must not only be done but also be seen to be done. Similarly, in the National Judicial Appointments Commission Case (2015), the apex court stressed the importance of avoiding conflicts of interest to maintain the judiciary’s credibility. Justice Kurian Joseph, who was part of the five-judge constitution bench that struck down the National Judicial Appointments Commission (NJAC) in 2015, supported judges disclosing their reasons for declining to hear a case. In his separate ruling, justice Kurian Joseph, who was one of the judges on this five-judge bench, juxtaposed his opinions with the concepts of accountability and openness, stating that the constitutional obligation placed on judges would justify making the grounds for a judge’s recusal publicly known.