CJI agrees to take call on plea to recall split verdict in CEC appointments law case
The Supreme Court on Wednesday agreed to examine and decide whether to hear an application seeking recall of a split verdict delivered on September 23 in litigation challenging the law governing appointments to the Election Commission of India (ECI). Chief Justice of India (CJI) Surya Kant was orally moved by senior advocate Gopal Sankaranarayanan to list the plea, which questions why one of the judges on the Bench, Justice Satish Chandra Sharma, did not disclose that his son is a standing counsel for the ECI.
The application and its core grievance
The application, filed by petitioner Naman Sherstra, seeks recall of the opinion authored by Justice Sharma on September 23 regarding whether to refer the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a five-judge Constitution Bench. Mr. Sherstra’s plea underscores a limited concern: it does not allege “actual bias, motive or want of good faith” on Justice Sharma’s part, but asks whether, in view of an immediate family member’s professional engagement with the institution at the heart of the case, the judge “ought to have disclosed the fact of such engagement to the parties when the proceedings were ongoing.”
Specifically, the application states that “Siddharth Sharma (son of Justice Satish Chandra Sharma) was appointed as the standing counsel for the ECI before the Madhya Pradesh High Court on July 10, 2024, after the appointment of Gyanesh Kumar and Dr. Sukhbir Singh Sandhu to the poll body.” It adds that this engagement “has continued since the elevation of Gyanesh Kumar as CEC and the appointment of Dr. Vivek Joshi,” and argues it is “prudent to assume that the incumbent members of the ECI, and specifically Mr. Gyanesh Kumar and Dr. Sukhbir Singh Sandhu, had a direct role and/or had direct knowledge of the appointment of Siddharth Sharma as the standing counsel for the ECI before the Madhya Pradesh High Court.”
The plea records that the engagement was not disclosed “at any point in time during the five hearings in the matter on May 5, May 7, May 14, May 27 and July 30.”
How the petition reached the Chief Justice
The application was first mentioned last week before Justice Dipankar Datta, who led the Division Bench that delivered the split verdict. Justice Datta directed Mr. Sankaranarayanan to approach the CJI since the records in the matter had already been returned to the Chief Justice’s registry. On Wednesday, the Chief Justice noted the oral mention and agreed to take a call on whether to hear the application.
The September 23 split verdict
On September 23, the Division Bench comprising Justices Datta and Sharma differed on whether to refer the challenge to the 2023 appointments law to a five-judge Constitution Bench. Justice Datta, in his separate opinion, declined a reference, while Justice Sharma took the opposite view, favouring reference. In consequence, the two judges passed a common order asking the CJI to allocate the case to a Constitution Bench.
Mr. Sherstra’s application specifically objects to this common order. It does not, however, expressly challenge Justice Datta’s separate opinion.
Justice Datta’s observations on the 2023 law
In his opinion, Justice Datta had observed that the 2023 enactment appeared, at first glance, to run contrary to the Constitution Bench ruling in the Anoop Baranwal case. That landmark judgment envisaged the Chief Justice of India as a neutral member of the Prime Minister-led panel responsible for recommending appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The 2023 law replaced the CJI on the panel with a Union Minister nominated by the Prime Minister.
Justice Datta cautioned that this change vested the Executive with a practical veto in the appointments process and risked reducing the presence of the Leader of the Opposition in the Lok Sabha to an ornamental role. He underscored that the process of appointing and the functioning of Election Commissioners are central to safeguarding free and fair elections.
Related developments and allegations of non-disclosure
Following the split verdict, media reports surfaced alleging that Justice Sharma’s son is a standing counsel for the ECI. While Mr. Sherstra’s application does not allege any actual bias, it presses the narrower question of judicial disclosure when close family members have ongoing professional engagements with an institution involved in the case and when the institution’s statutory composition and the appointments of its functionaries are directly under challenge.
Separately, another petitioner, Jaya Thakur, filed a curative petition on September 29 seeking recall of the split verdict, citing a “reasonable apprehension of bias and propriety.”
What happens next
With the Chief Justice agreeing to consider the request to list the application, the Court will decide whether to hear the plea for recall of Justice Sharma’s opinion and the challenge to the common order directing allocation to a Constitution Bench. Any further directions are expected to be issued after the Chief Justice’s examination of the request.
Published: October 07, 2026
