Justice Must Be Seen To Be Done: Curative Plea Seeks Recall Of CEC Law Verdict Over Judge's Son's ECI Link

A curative petition by Dr Jaya Thakur seeks recall of the Supreme Court's September 23 split verdict on the 2023 CEC and Election Commissioners law. The plea alleges reasonable apprehension of bias, as Justice SC Sharma's son has been ECI's empanelled counsel in the Madhya Pradesh High Court since July 2024. The petitioner says the judge should have disclosed this and argues the verdict stands vitiated. The plea invokes Articles 32 and 142 and Rupa Ashok Hurra.

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Curative Petition Filed In Supreme Court

A curative petition has been filed before the Supreme Court seeking 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.

The plea has been filed by Dr Jaya Thakur, one of the original petitioners, through Advocate-on-Record Varun Thakur.

The Propriety Concern

The petition rests on “reasonable apprehension of bias and propriety”. It points out that Justice Satish Chandra Sharma, who was on the two-judge bench, has a son who is standing counsel for the Election Commission of India (ECI) before the Madhya Pradesh High Court.

According to the petitioner, this came to light only after the verdict, through a LiveLaw article on the issue. The petitioner then checked the Madhya Pradesh High Court website and found that Justice Sharma's son has been empanelled with the ECI since July 10, 2024.

What The Petitioner Argues

The plea says there is a direct conflict between the son's professional duty towards the ECI and his father's adjudication of a challenge to the appointment of Election Commissioners. It stresses that justice must be seen to be done “manifestly and undoubtedly”.

It contends that a judge cannot decide a case where a family member represents one of the parties, even if in a different forum. According to the petitioner, Justice Sharma ought to have disclosed the connection before the hearing began.

The case, it is argued, falls squarely within the “reasonable likelihood of bias” and “real danger” tests laid down by the Supreme Court, and Justice Sharma's presence on the bench vitiated the verdict.

Legal Basis Of The Plea

The petition invokes the Court's inherent jurisdiction under Article 32 read with Article 142 of the Constitution and Order 48 Rule 1 of the Supreme Court Rules, 2013. It follows the guidelines laid down in Rupa Ashok Hurra v. Ashok Hurra, the landmark ruling that created the curative remedy.

Background: The Split Verdict

A bench of Justice Dipankar Datta and Justice SC Sharma had recently referred the challenge to the 2023 law to a larger bench. The judges differed on whether a reference was needed. Justice Datta found the Union's demand for a larger bench unwarranted, while Justice Sharma held otherwise.

Even so, they directed that the matter be placed before the Chief Justice of India for constituting a Constitution Bench of appropriate strength, to avoid further delay. The bench noted that a 3-judge bench reference on the preliminary point would consume more time.

Justice Datta also voiced concern over executive interference in appointments, rejecting the Union's argument that an executive-heavy panel can pick Election Commissioners the way judges appoint judges.