A curative petition has been filed before the Supreme Court seeking recall of its recent split verdict on the need to refer the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger bench.
The petition filed by Dr Jaya Thakur states that Justice Satish Chandra Sharma, who agreed with the Central government's demand to refer the matter to a larger bench, should not have heard the matter on account of a direct conflict of interest.
She has argued that there was a "reasonable apprehension of bias and propriety" since Justice Sharma's son, Siddharth Sharma, is a standing counsel for the Election Commission of India (ECI) before the Madhya Pradesh High Court since July 2024.
Justice Dipankar Datta had rejected the Centre's request for a reference to a larger bench.
A Bench of Justice Datta and Justice Sharma on September 23 had delivered separate views on the petitions challenging Sections 7 and 8 of the 2023 Act, under which the selection panel comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister.
A connected plea sought quo warranto against the appointments of Gyanesh Kumar, now Chief Election Commissioner, and Election Commissioner Sukhbir Singh Sandhu.
The Centre said that the matter should be referred to a larger bench since it involves a Constitutional question.
Justice Datta rejected the request but Justice Sharma agreed.
Despite the difference of opinion, the bench urged the Chief Justice of India (CJI) to consider setting up a Constitution Bench to hear the matter.
In the curative plea, Thakur has told the Court she learnt of Justice Sharma's son's engagement as ECI counsel only after media reports on September 25.
"In the respectful submission of the petitioner, there is a direct conflict of interest in the professional duty of Mr. Siddharth Sharma on behalf of the Election Commission of India and adjudication of lis challenging the appointment of Election Commissioners by Hon'ble Mr. Justice Satish Chandra Sharma," the plea states.
It adds that Justice Sharma"ought to have disclosed" his son's role before the commencement of the proceedings so as to ensure public confidence in administration of justice.
Relying on Rupa Ashok Hurra v. Ashok Hurra, the petition argues that a judge's failure to disclose connection with the parties is a recognised ground for curative relief, and that appearance of bias, not actual bias, is enough to vitiate a judgment.
It also points out that the Centre's May 2026 counter affidavit in the case carried "no whisper or objection" that a two-judge bench could not hear the case.
Attorney General for India raised the Article 145(3) objection for the first time during oral arguments on May 14, the plea says.
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".
Senior Advocate Vijay Hansaria, who settled the petition and certified it as fit for curative jurisdiction, wrote that he had "no doubt that His Lordship has decided the case on its own merits."
"However, on the principle that justice must not only be done but also seem to be done, it would have been appropriate that Hon'ble Mr. Justice Satish Chandra Sharma recused himself from hearing the present set of petitions," he added.
The petition seeks recall of the September 23 order and a fresh hearing before an appropriate bench.