Supreme Court to Consider Recalling Split Verdict in Election Commissioners Appointment Case: Recusal, Bias and Constitution Benches Explained
On 23 September 2026, a two-judge bench of the Supreme Court gave a split verdict (the two judges disagreed) in Dr Jaya Thakur v. Union of India. This case challenges the law on how the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are appointed.
The question before the bench was narrow: should the challenge be sent to a larger Constitution Bench, as the Union government had asked? Justice Dipankar Datta said no, because the law on this point was already settled in the Anoop Baranwal judgment (2023). Justice Satish Chandra Sharma said yes, because the case raised a substantial question about the meaning of the Constitution.
Because of the split, the matter went to the Chief Justice of India (CJI) to decide on a larger bench.
After the verdict, media reports said that Justice Sharma's son had been working as a standing counsel (a lawyer regularly appearing for a body) for the Election Commission of India in the Madhya Pradesh High Court since July 2024. This had not been disclosed while the bench heard the case.
On 7 October 2026, the petitioners asked the Supreme Court to recall (cancel) the split verdict on the ground of possible bias and hear the matter afresh. A bench led by CJI Surya Kant said the court would examine the application and then take a call. A curative petition on similar grounds has also been filed.
Appointment and Removal of the Chief Election Commissioner and Election Commissioners
The Election Commission of India (ECI) is led by a Chief Election Commissioner (CEC) and, at present, two other Election Commissioners (ECs). Article 324(2) of the Constitution says the President appoints them, subject to any law made by Parliament. For decades there was no such law, so the government of the day simply chose them. In 2023 the Supreme Court and then Parliament both stepped in, and the new law is what is now being challenged.
The petitions say the 2023 Act gives the government a 2:1 majority on the Selection Committee, which goes against the spirit of Anoop Baranwal. The split verdict was only about whether this challenge must first go to a Constitution Bench. The recall plea now asks whether that split order itself should stand.
Judicial Recusal: The Rule Against Bias (Nemo Judex in Causa Sua)
Recusal means a judge stepping away from hearing a case because there is a reason that may make the judge look biased, or actually be biased. The idea rests on an old rule of natural justice called nemo judex in causa sua, which is Latin for "no one should be a judge in their own cause". In India there is no written law that lists when a judge must recuse. It is mostly left to the judge's own conscience, guided by court judgments and a code of conduct for judges.
The recall plea says Justice Sharma should have disclosed that his son was the Election Commission's standing counsel, since the Commission's appointment process was the subject of the case. If the court accepts that this created a reasonable apprehension of bias, it may recall the split verdict and have the reference question heard afresh by a different bench.
Constitution Benches and Article 145(3)
A Constitution Bench is a bench of at least five judges of the Supreme Court. Article 145(3) of the Constitution says that any case involving a substantial question of law about the interpretation of the Constitution must be decided by at least five judges. The same minimum applies to a Presidential reference under Article 143. In simple words, when the meaning of the Constitution itself is in doubt, a small bench of two or three judges cannot settle it alone.
In the CEC appointments case, the two judges disagreed on whether the challenge raised a fresh "substantial question" needing a Constitution Bench under Article 145(3), or whether Anoop Baranwal had already settled the law. Because the bench had only two judges, the disagreement became a split verdict, and the CJI must now decide how to proceed, including on the recall plea.
- Split verdict date: 23 September 2026, in Dr Jaya Thakur v. Union of India
- Bench: Justice Dipankar Datta (against reference) and Justice Satish Chandra Sharma (for reference to a Constitution Bench)
- Recall plea taken up: 7 October 2026, before a bench led by CJI Surya Kant
- Ground: alleged non-disclosure that the judge's son was ECI standing counsel in the Madhya Pradesh High Court since July 2024
- Law under challenge: CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 (assent 28 December 2023)
- Selection Committee under the 2023 Act: Prime Minister, a Union Cabinet Minister, Leader of Opposition in the Lok Sabha
- Anoop Baranwal (2 March 2023) interim committee: Prime Minister, Leader of Opposition, CJI
- Article 324: Election Commission; Article 145(3): Constitution Benches; Article 137: review