Curative plea moved in SC for recall of September 23 split verdict on law on appointment of CEC, ECs

A curative petition has been filed in the Supreme Court for recall of the September 23 split verdict on the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. 

On September 23, in a significant development, the top court gave split opinions on whether a batch of pleas challenging the validity of the 2023 law that excludes the Chief Justice of India from the panel for selecting the Chief Election Commissioner (CEC) and Election Commissioners should be referred to a larger constitution bench.

The plea by Jaya Thakur comes in the wake of some claims in media reports that the son of Justice Satish Chandra Sharma, who was part of the bench that delivered the split verdict, is the poll panel's standing counsel before the Madhya Pradesh High Court. 

The plea filed through advocate Varun Thakur raises grounds of "reasonable apprehension of bias and propriety" and states that after the pronouncement of the split verdict, the petitioner came to know about Justice Sharma's son being on the EC's legal panel.

"In the respectful submission of the petitioner, there is a direct conflict of interest in the professional duty of Siddharth Sharma on behalf of the Election Commission of India and adjudication of lis challenging the appointment of Election Commissioners by Justice Satish Chandra Sharma... Because justice should not only be done, but manifestly and undoubtedly be seen to be done," the plea said.
It added that a judge cannot decide a case in which a family member of the judge is representing one of the parties, may be in a different fora and the propriety demanded that Justice Sharma ought to have disclosed about his son before the commencement of the proceedings.

The plea further contended that the case is fully covered by the 'reasonable likelihood of bias' and 'real danger test' laid down by the Supreme Court and that Justice Sharma's presence on the bench vitiated the September 23 decision. 

Jaya Thakur's plea further states that she verified the claims made in the media reports from the Madhya Pradesh High Court website, and found that Justice Sharma's son was empanelled with the EC since July 10, 2024. 
The petition has been filed under the inherent jurisdiction of the court under Article 32 read with Article 142 of the Constitution and under Order 48 Rule 1 of the Supreme Court Rules, 2013 in terms of the guidelines laid down in Rupa Ashok Hurra v. Ashok Hurra case related to filing of curative petitions. 

The petitioner has sought exemption from first filing a review, arguing that it would be listed before the same bench and thus "no useful purpose would be served".

    Under the Supreme Court rules, after the disposal of a case by the apex court, aggrieved parties can approach the top court for review of the decision by pointing to an "error apparent on face of the record".  
    The review petition is normally listed before the same judges who were part of the original bench for consideration of the matters in chambers except in exceptional circumstances, when open court hearing is allowed.
    A curative petition is normally considered by a bench that includes the three senior judges of the top court and the judges who delivered the original judgment, if they are available. 

    On September 23, a bench of justices Dipankar Datta and Satish Chandra Sharma, which heard the matter for five days, said that due to a difference of opinion, the matter be placed before CJI Surya Kant on the administrative side for constitution of a bench of appropriate strength for an effective and authoritative adjudication.

    The bench also requested the CJI to explore the possibility of setting up a permanent five-judge constitution bench for deciding seminal issues.

    The batch of pleas challenged the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the CJI from the selection panel for appointing election commissioners and CECs.

    However, the Centre had submitted that the petitions raise seminal questions of constitutional importance and should be referred to the five-judge constitution bench.