Recall split verdict in CEC appointment case: petition

1. At a Glance

• The lead petitioner who challenged the CEC and ECs (Appointment, Conditions of Service and Term of Office) Act, 2023 has filed a curative petition in the Supreme Court. It asks the Court to recall the 23 September 2026 split verdict. [1]
• The ground is "reasonable apprehension of bias". The petitioner alleges that the son of Justice Satish Chandra Sharma, one of the two judges on the Bench, is standing counsel for the Election Commission of India. [1]
• Why it matters for UPSC: it brings together ECI independence (Art. 324), judicial ethics and recusal (nemo judex in causa sua), curative jurisdiction, and bench-reference procedure (Art. 145(3)).

2. Why in the News

• 23 Sep 2026: A Division Bench delivers a split verdict on whether the challenge to the 2023 Act should go to a five-judge Constitution Bench. [1]
• Justice Dipankar Datta (lead judge) declined to refer it. [1]

• Justice Satish Chandra Sharma held it should be heard by a Constitution Bench. [1]

• Result: the hearing on the merits of the 2023 Act is stalled for now. [1]

• 29 Sep 2026 (Tuesday): The lead petitioner files a curative petition to recall the verdict, citing bias. [1]
• The petitioner says she learned about the judge's son after the judgment, from media reports, and then checked it herself on the High Court's website. [1]

3. Background & Evolution

• 1950: Article 324(2) says the President appoints the CEC and ECs, "subject to the provisions of any law made by Parliament." For more than 70 years no such law was made, so appointments were made on executive advice alone. [2]
• 1991: The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 covered service conditions but not the selection process. [2]
• 2 Mar 2023: In Anoop Baranwal v. Union of India, a five-judge Constitution Bench held that, until Parliament legislates, appointments must be made on the advice of a committee of the PM, the Leader of Opposition in the Lok Sabha (or leader of the largest opposition party) and the CJI. [2]
• Dec 2023: Parliament passes the 2023 Act, which replaced the Chief Justice of India with a Union Minister on the three-member selection panel. [1] This gave the government a dominant role in appointing the CEC and ECs. [1]
• 2024–26: Petitions challenging the Act are heard, ending in the 23 Sep 2026 split verdict. [1]

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• There are two sides. Removing the CJI arguably undoes the protection Anoop Baranwal set up. On the other hand, the judgment said its arrangement applied only until Parliament legislated, and Parliament then did. [1][2]
• A Constitution Bench is required for a "substantial question of law as to the interpretation of the Constitution" (Art. 145(3)). That provision is what the split between the two judges turns on. [2]
• When a two-judge bench splits, the matter normally goes to the CJI, who places it before a larger bench. [2]

Ethical / Governance

• "Reasonable apprehension of bias" is the test: would a fair-minded observer see a real possibility of bias? Actual bias does not have to be shown. [1][2]
• The petition raises the question of recusal norms, including the Bangalore Principles of Judicial Conduct (2002) and the SC's Restatement of Values of Judicial Life (1997). The petitioner says the connection was not disclosed and was learned from the media. [1][2]
• Any conflict-of-interest disclosure system has to cover relatives who appear as counsel for litigant institutions. [1]

Democratic / Institutional

• The independence of the ECI is central to free and fair elections, which are part of the basic structure. [2]
• If the executive has a 2:1 majority on the panel, the neutrality of the "referee" of elections is open to question. [1]

Administrative

• Delay while the merits hearing is stalled: appointments already made under the Act continue while its validity is undecided. [1][2]

6. Recent Developments (last 12–18 months)

• 23 Sep 2026: Split verdict; Datta J. declines the reference, S.C. Sharma J. favours a Constitution Bench. [1]
• 29 Sep 2026: Curative petition filed seeking recall on bias grounds. [1]
• 2024–25 (context): Appointments of ECs and the CEC under the 2023 Act. Examples include Gyanesh Kumar and S.S. Sandhu as ECs (Mar 2024) and Gyanesh Kumar as CEC (Feb 2025). [2]

7. Prelims Hooks

• The 2023 Act replaced the CJI with a Union Minister on the CEC/EC selection panel. [1]
• The selection panel under the 2023 Act has three members. [1]
• The split verdict of 23 Sep 2026 came from a Division Bench (2 judges). [1]
• Justice Dipankar Datta declined to refer the case to a Constitution Bench. [1]
• Justice Satish Chandra Sharma held that the case should go to a Constitution Bench. [1]
• A Constitution Bench needs at least five judges (Art. 145(3)). [2]
• The ground for recall is "reasonable apprehension of bias". [1]
• Art. 324(2) lets Parliament make a law on how the CEC and ECs are appointed. [2]
• Anoop Baranwal v. UoI (2023) set up the interim PM + LoP + CJI committee. [2]
• The curative petition was created in Rupa Ashok Hurra (2002). It is not mentioned in the Constitution. [2]
• The CEC can be removed only in the manner of an SC judge. ECs can be removed only on the CEC's recommendation. [2]
• Under the 2023 Act, a search committee headed by the Law Minister prepares the shortlist. [2]

8. How the 2023 Law Gives the Government Control of the Panel

• The government always wins a vote on the panel
• The panel has three members: the PM, a Cabinet Minister and the Leader of Opposition (LoP) [3].
• The Cabinet Minister is chosen by the PM, so the ruling side holds 2 of 3 votes [3].

• The LoP can object. The LoP cannot stop an appointment.

• During a vacancy, only the ruling side may be at the table

• The Bill allowed the panel to recommend names even when one of its seats is empty [3].
• PRS points out that the LoP seat can fall vacant just before a general election. At that moment the panel would have only ruling-party members [3].

• This is the exact moment the umpire (the ECI) matters most.

• Salary control was moved towards the executive

• As first introduced, the Bill linked the CEC's pay to the Cabinet Secretary's, not to a Supreme Court judge's [3].
• Parliament fixes a judge's salary. The government fixes the Cabinet Secretary's salary on Pay Commission advice [3].

• So the government would gain leverage over the pay of the people who judge its own conduct in elections. (Check whether the final Act kept this clause. The PRS brief covers the Bill as introduced.)

• ECs are still less protected than the CEC

• An EC can be removed on the CEC's recommendation alone [3].
• In Anoop Baranwal the Court noted this protection could be extended to ECs. The law did not extend it [3].

• A CEC who is close to the government could use this to pressure a dissenting EC.

• Only former bureaucrats are eligible

• Only people of Secretary rank (senior civil servants) or above qualify [3].
• The ECI also acts in a quasi-judicial role (it decides disputes like a court, e.g. over party symbols). Judges, lawyers and academics are left out [3].

9. The Government's Strongest Case, and Where It Falls Short

• The strongest argument for the 2023 Act
• Article 324(2) gives Parliament the power to make this law [2].
• Anoop Baranwal itself said its PM + LoP + CJI panel was temporary, only until Parliament legislates [4].
• Parliament legislated. An elected Parliament choosing the design is democratic, even if judges would have chosen differently.

• Keeping the CJI off executive panels also keeps the judiciary out of appointments it may later have to review in court.

• What is right about it

• The Court did not order that the CJI must be on the panel for all time. Leaving the CJI out is not unconstitutional by itself.

• PRS itself argued that a law passed by Parliament is better than a stop-gap court order, because it gives a permanent process [4].

• Where it falls short

• A law can be valid and still be weak. The test is not who sits on the panel but whether the executive can decide alone. With a 2:1 majority it can [3].
• Every earlier Indian proposal tried to share the power. The National Commission to Review the Working of the Constitution (NCRWC, 2002) proposed a wide panel: PM, LoP of both Houses, Lok Sabha Speaker and Rajya Sabha Deputy Chairman [4]. None of them proposed giving the government a built-in majority.

• PRS notes the Supreme Court placed the ECI on a "higher pedestal" because of its role in elections [3]. An appointment process that fits an ordinary government post does not fit it.

• Why this matters for the curative petition

• Whether a five-judge Constitution Bench hears the case decides how much weight the ruling will carry.
• A two-judge ruling can easily be questioned later. A Constitution Bench ruling settles the point.

10. Why the Judge's Son Matters Even If the Judge Was Fair

• The test is about appearance, not proof
• The petitioner does not have to show that Justice Sharma was actually biased [1].
• The question is whether a fair-minded observer, knowing the facts, would see a real risk of bias.
• The alleged link is direct: the judge's son is said to be standing counsel (a lawyer kept on retainer to represent an institution) for the ECI [1].

• The case is about how the ECI's own heads are chosen.

• The failure is disclosure, not only the link

• The petitioner says she learned of it from the media after the verdict, and then checked the High Court website herself [1].
• India has no written rule that forces judges to declare such links at the start of a case. Recusal (a judge stepping away from a case) is left to each judge's conscience.

• If the link had been disclosed at the first hearing, the parties could have objected then. That would have saved the months now lost.

• The risk on the other side

• If bias claims can be raised after a verdict, a losing party has a reason to dig into judges' families only once a ruling goes against it.
• This is called bench-hunting: trying to get the judges you want. Courts need a rule that is clear enough to stop this.

• A clear rule protects judges too. A judge who discloses at the start cannot be attacked later.

• An unusual tool for an unusual order

• A curative petition is the last remedy, normally used after a review petition fails against a final judgment [2].
• A split verdict on whether to refer the case decides nothing on the merits.
• Whatever the Court does here will set the rule on whether bias can reopen procedural orders, and not only final judgments.

11. Who Should Fix What

• Parliament: stop the ruling side from appointing alone during a vacancy
• Change the Act so the panel cannot make recommendations when the LoP seat is empty [3].

• Or widen the panel along NCRWC (2002) lines, adding the Speaker and the Rajya Sabha Deputy Chairman [4].

• Parliament: give ECs the same removal protection as the CEC

• Anoop Baranwal already said this protection could be extended [3].

• This would stop a CEC from threatening a dissenting colleague with removal.

• Learn from other democracies

• South Africa: judges have a role in selecting its election commissioners [3].
• UK: Parliament oversees the appointments [3].
• USA: the Senate must confirm the nominees [3].

• All three add a check from outside the executive. India's 2023 Act adds none that can outvote the government.

• Supreme Court: write down a recusal and disclosure rule

• The Restatement of Values of Judicial Life (1997) and the Bangalore Principles (2002) already say a judge should not hear cases where family members are involved [2].

• The Court's full bench could turn these into a written rule: a judge must declare, at the first hearing, any relative who acts for a party.

• CJI: send the reference question to a larger bench quickly

• Whatever happens to the curative petition, the question of which bench hears the case should be settled fast.
• Until then, CEC and ECs keep being appointed under a law whose validity is undecided [1].

12. Anchors for Answers

• Data: The ruling side holds 2 of the 3 votes on the CEC/EC selection panel under the 2023 law [3]
• Report/Committee: NCRWC (2002): five-member panel of PM, LoPs of both Houses, Lok Sabha Speaker and Rajya Sabha Deputy Chairman [4]; Dinesh Goswami Committee (1990) and the Law Commission also studied this [4]
• Law/Case: Art. 324(2) and 324(5); Art. 145(3); Anoop Baranwal v. UoI (2023); Rupa Ashok Hurra v. Ashok Hurra (2002); CEC & ECs Act, 2023
• Comparison: South Africa (judges help select), UK (Parliament oversees), USA (Senate confirms) [3]

13. Mains Relevance

• GS-II: Appointment to various constitutional posts, and the powers, functions and responsibilities of constitutional bodies (ECI). Structure and functioning of the Judiciary. Separation of powers.
• GS-IV: Probity in governance, conflict of interest, and judicial ethics.
• Possible question stems: 1. "The 2023 law on appointing the CEC and ECs puts the independence of the Election Commission at risk." Critically examine this in light of Anoop Baranwal (2023). (15 marks) 2. Discuss the doctrine of "reasonable apprehension of bias" and how it applies to judicial recusal in India. Do we need a codified recusal framework? (10 marks) 3. Explain how the curative jurisdiction of the Supreme Court developed. Is it a proper remedy for procedural or interlocutory orders? (10 marks)

14. Related Topics to Study Next

• Anoop Baranwal v. UoI (2023): the judgment that the 2023 Act effectively displaced.
• Art. 324 and the ECI's multi-member structure (1989/1993): how the ECI became a multi-member body and the T.N. Seshan v. UoI (1995) case.
• Curative and review petitions (Art. 137, Rupa Hurra): the remedies available after a final judgment.
• Judicial recusal and the NJAC case (2015): questions of independence and conflict of interest in the judiciary.
• Art. 145(3) and Constitution Benches: when a reference to a larger bench is required.
• Appointment panels for the CBI Director, CVC and Lokpal: comparable panels, with and without the CJI.
• Electoral reforms (Goswami, Dinesh; Law Commission 255th Report): earlier recommendations for a collegium to appoint ECs. [2]

15. Common Errors / Trap Areas

• Bench size: the split verdict came from a two-judge Division Bench, not a Constitution Bench. Only the question of referring the case to five judges was split. [1]
• Who held what: Datta J. declined the reference and Sharma J. favoured it. Aspirants often swap the two. [1]
• Who replaced whom: the CJI was replaced by a Union Minister. The LoP was not removed. [1][2]
• Nature of a curative petition: it is normally filed after a review petition is dismissed, against a final judgment. Using it to recall a split, interlocutory-type verdict is unusual, so do not treat it as routine procedure. [2]
• Removal protection: the CEC has SC-judge-level protection. ECs do not have the same protection on their own; their removal depends on the CEC's recommendation. [2]