The latest application follows a curative petition filed on September 29 by another petitioner, Jaya Thakur, seeking recall of the September 23 verdict on grounds of a “reasonable apprehension of bias and propriety”.
A fresh application has been moved in the Supreme Court seeking the recall of an opinion delivered by Justice Satish Chandra Sharma in the challenge to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), raising questions over the non-disclosure of his son's professional association with the Election Commission of India (ECI).
The application was orally mentioned on Thursday (October 1) before Justice Dipankar Datta, who had headed the two-judge bench that delivered a split verdict on September 23, reported
. Justice Datta directed the petitioner to mention the matter before the Chief Justice of India (CJI). The CJI was not sitting on Friday, October 2, and the next working day for the Supreme Court was October 5.
The plea has been filed by Naman Shestra, represented by senior advocate Gopal Sankaranarayanan and advocate Pawan Reley. It seeks the recall of Justice Sharma's opinion favouring a reference to a Constitution Bench to examine the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
What the fresh application alleges
The application questions why Justice Sharma did not disclose, during five hearings in the case, that his son, Siddharth Sharma, had been appointed as standing counsel for the ECI before the Madhya Pradesh High Court.
According to the application, the appointment took place on July 10, 2024, after Gyanesh Kumar and Dr Sukhbir Singh Sandhu were appointed to the poll body. It further states that the engagement continued following Kumar's elevation as CEC and the appointment of Dr Vivek Joshi.
The petitioner has argued that the professional association should have been disclosed during the proceedings held on May 5, May 7, May 14, May 27 and July 30.
The application states that disclosure would have allowed the petitioners to seek Justice Sharma's recusal before the court delivered its opinions and order on September 23. It argues that the absence of disclosure deprived them of an opportunity to make such a request.
However, Shestra has not alleged actual bias, motive or a lack of good faith on the judge's part. His plea is confined to whether the professional engagement of an immediate family member with the institution whose composition and appointments were under challenge ought to have been disclosed to the parties.
How the bench delivered a split verdict
The case challenges Sections 7 and 8 of the 2023 Act, which provide 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.
The legislation replaced the Chief Justice of India's position on the selection panel with that of a Union Minister, departing from the arrangement prescribed by the Supreme Court's Constitution Bench in the Anoop Baranwal case.
On September 23, Justice Datta declined the Centre's request to refer the matter to a larger bench, while Justice Sharma favoured such a reference. Despite their disagreement, both judges passed a common order asking the CJI to allocate the matter to a Constitution Bench.
Justice Datta had observed that the 2023 law was prima facie inconsistent with the earlier Constitution Bench judgment. He also expressed concern that replacing the CJI with a Union Minister gave the executive veto power over appointments and reduced the Leader of Opposition's role to an ornamental one. He emphasised that the appointment and functioning of Election Commissioners were integral to free and fair elections.
The split verdict has left the constitutional challenge awaiting a final determination. A connected petition has also sought quo warranto proceedings concerning the appointments of Gyanesh Kumar as CEC and Sukhbir Singh Sandhu as Election Commissioner.
Earlier curative petition also sought recall
The latest application follows a curative petition filed on September 29 by another petitioner, Jaya Thakur, seeking recall of the September 23 verdict on grounds of a “reasonable apprehension of bias and propriety”.
According to the petition, Thakur learnt of Siddharth Sharma's association with the ECI through a LiveLaw report published on September 25 and subsequently verified the information on the Madhya Pradesh High Court website.
The curative petition argues that the professional responsibilities of Justice Sharma's son on behalf of the ECI raise concerns about the judge hearing a challenge to the appointments of the poll body's members. It invokes the standards of “reasonable likelihood of bias” and the “real danger test”, contending that the appearance of bias is sufficient to warrant relief.
The plea also states that the Centre's counter-affidavit filed in May 2026 did not object to the case being heard by a two-judge bench. According to the petitioner, the Attorney General for India raised the objection under Article 145(3) for the first time during oral arguments on May 14.
Filed under Article 32 read with Article 142 of the Constitution and Order 48 Rule 1 of the Supreme Court Rules, 2013, the curative petition seeks exemption from first filing a review petition, arguing that it would be considered by the same bench and “no useful purpose would be served”.
Senior advocate Vijay Hansaria certified the petition as fit for curative jurisdiction and settled it. While stating that he had “no doubt that His Lordship has decided the case on its own merits”, Hansaria added that, on the principle that justice must not only be done but also seem to be done, it would have been appropriate for Justice Sharma to recuse himself.
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