Curative plea targets Supreme Court poll-law split
A curative petition has been filed in the Supreme Court seeking recall of its September 23 split ruling on challenges to the 2023 law governing appointments to the Election Commission, alleging a conflict-of-interest concern involving Justice Satish Chandra Sharma.
The petition, filed by Jaya Thakur and others, seeks a fresh hearing before an appropriate bench. It argues that Justice Sharma ought to have disclosed that his son, advocate Siddharth Sharma, has served as standing counsel for the Election Commission of India before the Madhya Pradesh High Court since July 2024, and should have recused himself.
The Madhya Pradesh High Court's advocates database lists Siddharth Sharma as counsel for the Election Commission, with his engagement dated July 10, 2024. The curative plea says the professional association created a "reasonable apprehension of bias and propriety" because the constitutional authority represented by the judge's son was connected to the litigation before him.
The petition does not allege that Justice Sharma decided the case for an improper reason. Senior advocate Vijay Hansaria, who certified the matter as fit for curative jurisdiction and settled the petition, said he had "no doubt" that the judge decided the case on its merits. He nevertheless said the principle that justice must also be seen to be done made recusal appropriate.
Justice Sharma and Justice Dipankar Datta had delivered differing opinions on September 23 on whether petitions challenging the Chief Election Commissioner and Other Election Commissioners Act, 2023 should go before a five-judge Constitution Bench.
Justice Datta held that a larger-bench reference was unnecessary, while Justice Sharma concluded that the challenge raised a substantial question of constitutional interpretation requiring consideration by a Constitution Bench. Despite their disagreement, both judges directed that the papers be placed before Chief Justice of India Surya Kant to consider constituting a bench of appropriate strength.
Justice Datta's opinion also examined the composition of the selection committee, observing that the presence of a Cabinet minister nominated by the Prime Minister raised a question about perceived neutrality because ministers are bound by collective responsibility. Justice Sharma took the view that Parliament's exercise of its power under Article 324, and the constitutional implications of replacing the court-devised interim arrangement, presented questions that should be authoritatively considered by at least five judges. Neither opinion finally determined the validity of the 2023 Act.
The underlying petitions challenge provisions including Section 7 of the 2023 Act. The law provides for a selection committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet minister nominated by the Prime Minister to recommend appointments of the Chief Election Commissioner and Election Commissioners.
That arrangement replaced the interim mechanism laid down by a Constitution Bench in the 2023 Anoop Baranwal judgment, under which the selection committee consisted of the Prime Minister, the Leader of Opposition and the Chief Justice of India until Parliament enacted a law. Petitioners contend that replacing the Chief Justice with a Cabinet minister weakens the institutional independence required of the Election Commission. The Union government has defended Parliament's authority to prescribe the appointment mechanism.
The curative petition also questions how the larger-bench issue arose. It says the Union government's counter-affidavit filed in May 2026 contained no objection to the constitutional challenge being heard by a two-judge bench, and says the Attorney General raised the objection under Article 145 during oral arguments on May 14.
Thakur's plea relies on the Supreme Court's decision in Rupa Ashok Hurra versus Ashok Hurra, the case that established the narrow curative jurisdiction intended to prevent a miscarriage of justice after ordinary remedies have been exhausted. It argues that non-disclosure of a judge's connection with a party can justify curative intervention where circumstances create an apprehension of bias.
The petition, filed by Jaya Thakur and others, seeks a fresh hearing before an appropriate bench. It argues that Justice Sharma ought to have disclosed that his son, advocate Siddharth Sharma, has served as standing counsel for the Election Commission of India before the Madhya Pradesh High Court since July 2024, and should have recused himself.
The Madhya Pradesh High Court's advocates database lists Siddharth Sharma as counsel for the Election Commission, with his engagement dated July 10, 2024. The curative plea says the professional association created a "reasonable apprehension of bias and propriety" because the constitutional authority represented by the judge's son was connected to the litigation before him.
The petition does not allege that Justice Sharma decided the case for an improper reason. Senior advocate Vijay Hansaria, who certified the matter as fit for curative jurisdiction and settled the petition, said he had "no doubt" that the judge decided the case on its merits. He nevertheless said the principle that justice must also be seen to be done made recusal appropriate.
Justice Sharma and Justice Dipankar Datta had delivered differing opinions on September 23 on whether petitions challenging the Chief Election Commissioner and Other Election Commissioners Act, 2023 should go before a five-judge Constitution Bench.
Justice Datta held that a larger-bench reference was unnecessary, while Justice Sharma concluded that the challenge raised a substantial question of constitutional interpretation requiring consideration by a Constitution Bench. Despite their disagreement, both judges directed that the papers be placed before Chief Justice of India Surya Kant to consider constituting a bench of appropriate strength.
Justice Datta's opinion also examined the composition of the selection committee, observing that the presence of a Cabinet minister nominated by the Prime Minister raised a question about perceived neutrality because ministers are bound by collective responsibility. Justice Sharma took the view that Parliament's exercise of its power under Article 324, and the constitutional implications of replacing the court-devised interim arrangement, presented questions that should be authoritatively considered by at least five judges. Neither opinion finally determined the validity of the 2023 Act.
The underlying petitions challenge provisions including Section 7 of the 2023 Act. The law provides for a selection committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet minister nominated by the Prime Minister to recommend appointments of the Chief Election Commissioner and Election Commissioners.
That arrangement replaced the interim mechanism laid down by a Constitution Bench in the 2023 Anoop Baranwal judgment, under which the selection committee consisted of the Prime Minister, the Leader of Opposition and the Chief Justice of India until Parliament enacted a law. Petitioners contend that replacing the Chief Justice with a Cabinet minister weakens the institutional independence required of the Election Commission. The Union government has defended Parliament's authority to prescribe the appointment mechanism.
The curative petition also questions how the larger-bench issue arose. It says the Union government's counter-affidavit filed in May 2026 contained no objection to the constitutional challenge being heard by a two-judge bench, and says the Attorney General raised the objection under Article 145 during oral arguments on May 14.
Thakur's plea relies on the Supreme Court's decision in Rupa Ashok Hurra versus Ashok Hurra, the case that established the narrow curative jurisdiction intended to prevent a miscarriage of justice after ordinary remedies have been exhausted. It argues that non-disclosure of a judge's connection with a party can justify curative intervention where circumstances create an apprehension of bias.