Supreme Court to Examine a Curative Plea Against Its Split Verdict on the Election Commissioners Appointment Law
The Supreme Court has agreed to examine a plea that asks it to recall (cancel and redo) its split verdict of 23 September 2026 on the law for appointing the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).
The law in question is the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It is challenged because it replaced the Chief Justice of India (CJI) with a Union Cabinet Minister on the panel that selects these officers.
On 23 September, a two-judge bench split 1-1. Justice Dipankar Datta refused the Union government's request to send the case to a larger bench. Justice Satish Chandra Sharma held that the case raises a substantial question of constitutional interpretation and should go to a Constitution Bench under Article 145(3). Both judges then sent the papers to the CJI to decide on forming a Constitution Bench.
The new plea is a curative petition filed by Dr Jaya Thakur. It argues there is a "reasonable apprehension of bias", because Justice Sharma's son has been empanelled as the Election Commission of India's standing counsel (a lawyer who regularly represents a body) before the Madhya Pradesh High Court since 10 July 2024. It says this link should have been disclosed before the hearing.
The plea relies on the Supreme Court's inherent powers under Article 32 read with Article 142, and on Order XLVIII of the Supreme Court Rules, 2013, which governs curative petitions. It also asks to skip the normal first step of a review petition, since a review would go back to the same bench.
Curative Petition: The Supreme Court's Last Remedy
A curative petition is the very last legal chance to ask the Supreme Court to correct its own final judgment. It can be filed only after the Court has already decided the case and has also rejected a review petition against it. The Court allows it only in very rare cases, for example when a basic rule of fair hearing was broken, or when a judge had a hidden link to the case that could make the decision look biased. The Constitution does not mention the curative petition by name. The Supreme Court created it in 2002.
The petitioner has used the curative route to seek recall of the 23 September 2026 split verdict on the Election Commissioners law. The plea rests on the second Rupa Ashok Hurra ground: that a judge on the bench did not disclose a link (his son's role as the Election Commission's standing counsel), which could create an apprehension of bias.
Appointment and Removal of the Chief Election Commissioner and Election Commissioners
The Election Commission of India is led by a Chief Election Commissioner (CEC) and, at present, two other Election Commissioners (ECs). Article 324(2) says the President appoints them, subject to any law made by Parliament. For decades there was no such law, and the government in practice chose them. In 2023, the Supreme Court and then Parliament both stepped in, and the 2023 Act now sets the selection process.
The challenge to this Act is what the two-judge bench was hearing. Its split on whether to send the case to a Constitution Bench, and now the curative plea against that split verdict, will decide how soon the Court rules on whether the CJI's removal from the panel is valid.
Constitution Benches and Article 145(3)
A Constitution Bench is a bench of at least five Supreme Court judges. Article 145(3) of the Constitution says any case involving a substantial question of law about the interpretation of the Constitution must be heard by at least five judges. Smaller benches of two or three judges can "refer" such a case to a larger bench. When a two-judge bench splits 1-1, there is no majority, so the matter goes to the Chief Justice to place before a larger bench.
Because the two judges differed, the papers went to CJI Surya Kant to consider forming a Constitution Bench. The curative plea now asks the Court to recall that very split verdict, which adds a new step before any larger bench takes up the case.
Judicial Recusal: The Rule Against Bias (Nemo Judex in Causa Sua)
Recusal means a judge stepping away from a case because there is a reason that may make the judge look biased, or actually be biased. It rests on an old rule of natural justice, nemo judex in causa sua, which means "no one should be a judge in their own cause". India has no law that lists when a judge must recuse. It is mostly left to the judge's own conscience, guided by court rulings and a code of conduct.
The curative plea argues that Justice Sharma should have disclosed that his son represents the Election Commission before the Madhya Pradesh High Court, and that the bench was hearing a case on how Election Commissioners are appointed. It treats this as a reasonable apprehension of bias that taints the verdict.
- Split verdict date: 23 September 2026; bench of Justice Dipankar Datta and Justice Satish Chandra Sharma
- Law challenged: Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023
- Selection Committee under the Act: Prime Minister, Leader of the Opposition in the Lok Sabha, a Union Cabinet Minister nominated by the PM (CJI excluded)
- Anoop Baranwal (2 March 2023) interim panel: PM, Leader of the Opposition, CJI
- Reference sought under Article 145(3): minimum five-judge bench
- Matter placed before CJI Surya Kant for a Constitution Bench
- Curative plea grounds: reasonable apprehension of bias; judge's son empanelled as ECI standing counsel before the Madhya Pradesh High Court since 10 July 2024
- Legal basis of the plea: Article 32 read with Article 142; Order XLVIII, Supreme Court Rules, 2013; Rupa Ashok Hurra (2002)