A fresh application has been moved before the Supreme Court seeking recall of its recent split verdict concerning the constitutional challenge to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
The application was mentioned before a Bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V. Mohana. Senior Advocate Gopal Sankaranarayanan sought listing of the plea, following which the Chief Justice said that the Court would examine the request and take an appropriate decision.
The application stems from the September 23 decision of a Bench comprising Justices Dipankar Datta and Satish Chandra Sharma. The two judges differed on whether challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be placed before a Constitution Bench.
Justice Datta was of the view that there was no necessity for a larger Bench, while Justice Sharma concluded that the petitions raised substantial constitutional questions warranting consideration by a Constitution Bench. In view of the divergence, the matter was directed to be placed before the Chief Justice for deciding the appropriate course.
The underlying petitions question, among other provisions, Sections 7 and 8 of the 2023 legislation. Under the statutory framework, the selection committee for appointing the CEC and ECs consists of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
The challenge also includes proceedings concerning the appointments of Gyanesh Kumar, who is presently the Chief Election Commissioner, and Election Commissioner Sukhbir Singh Sandhu.
The latest application raises concerns over Justice Sharma’s participation in the proceedings, pointing to the professional association of his son, Siddharth Sharma, with the Election Commission of India. Siddharth Sharma has been appearing as standing counsel for the ECI before the Madhya Pradesh High Court since 2024.
The applicant contends that the connection ought to have been disclosed during the hearings and that the circumstances could give rise to a reasonable apprehension regarding impartiality. The plea, however, does not allege that Justice Sharma was actually biased or acted with improper motive.
According to the application, the bench heard the matter on multiple occasions without the connection being disclosed to the parties. The applicant has argued that had the information been known earlier, a request for recusal could have been considered before the judgment was delivered.
The plea relies on the principle that justice must not only be administered fairly but must also be seen to have been administered fairly. It also refers to the Supreme Court’s Restatement of Values of Judicial Life, which emphasises the importance of preserving public confidence in judicial impartiality.
This is not the first challenge seeking reconsideration of the September 23 proceedings. A separate curative petition filed by Dr Jaya Thakur has also questioned Justice Sharma’s participation on substantially similar grounds. The petition contends that the association of his son with the ECI created a reasonable apprehension of bias and seeks a fresh hearing before an appropriate Bench.
Meanwhile, the September 23 split verdict has left the question of whether the constitutional challenge should be heard by a larger Bench to be determined by the Chief Justice, who controls the roster of the Supreme Court.
The latest plea therefore seeks reconsideration of the course adopted following the split verdict and, if the objection is accepted, fresh consideration of the reference issue by a Bench constituted by the Chief Justice.
The development comes at a significant stage in the constitutional challenge to the 2023 appointment framework, which has raised broader questions concerning the independence of the Election Commission and the manner in which its top constitutional functionaries are selected.
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