SC plea seeks recall of CEC law order over justice Sharma’s son’s ECI role

An application was filed in the Supreme Court seeking recall of its September 23 order referring the challenge to the 2023 law governing the appointment of the chief election commissioner and election commissioners to a Constitution bench, citing concerns over justice Satish Chandra Sharma’s son appearing for the Election Commission of India (ECI).

The application was filed by Naman Sherstra, who is one of the petitioners who has challenged the validity of the CEC & ECs (Appointment, Conditions of Service and Term of Office) Act, 2023, on the ground that one of the judges who heard the matter — Justice Satish Chandra Sharma — ought to have recused himself as his son appears for the ECI before the Madhya Pradesh high court.

On September 23, a bench of Justices Dipankar Datta and Satish Chandra Sharma gave a split verdict on whether the 2023 law should be referred to a Constitution bench. While Justice Datta was of the view that the need does not arise as the challenge to the Act can be considered based on the settled principles laid down by earlier judgments, Justice Sharma held a different view. He said that substantial questions on the interpretation of the Constitution arise in the matter and under Article 145(3), the same should be heard by a bench of at least five judges of the Supreme Court. The two judges passed a common order placing the matter before the CJI for referring the petitions to a Constitution bench.

The application categorically states that the matter was heard by the bench of Justices Datta and Sharma on five occasions. On none of the occasions did Justice Sharma disclose this fact or seek recusal on this ground. Sherstra stated that the fact about Justice Sharma’s son being engaged as ECI counsel became known from news reports that surfaced two days after the September 23 order.

It sought recall of the order stating, “The question is whether the established circumstances, viewed objectively, give rise to a reasonable apprehension concerning impartiality.” However, the application does not seek recall of Justice Datta’s separate opinion.

The present application is the second plea for recall. A curative petition was filed on Tuesday by Congress leader Jaya Thakur, also a petitioner in the present batch challenging the validity of the 2023 law. The curative plea sought recall on the ground of a “reasonable likelihood of bias,” based on the same fact linking Justice Sharma’s son to the ECI.

But Sherstra’s application categorically states that Justice Sharma did not disclose the fact of his son’s association with the ECI when the matter was heard on five occasions.

It said, “The petitioners state on record that the engagement of justice Satish Chandra Sharma’s son as the standing counsel for the ECI before the Madhya Pradesh High Court was not disclosed to the parties by justice Sharma at any point in time during the five hearings in the matter.”

The present batch of petitions was heard by the bench of Justices Datta and Sharma on five occasions — May 6, May 7, May 14, May 27 and July 30. It was on July 30 that orders were reserved on the issue of whether the petitions should be heard by a Constitution bench of five judges.

The plea for recall clarified, “The present application does not impute actual bias, motive or want of good faith to the judge concerned…if this court finds the objection well-founded, (there be) fresh consideration of the question of reference by an appropriate bench constituted by the CJI.”

It referred to the Restatement of Values of Judicial Life, adopted by the Full Court of the Supreme Court in 1997, which begins with the principle that justice must not merely be done but must also be seen to be done, and requires the conduct of the higher judiciary to reaffirm public faith and impartiality.

Going by this principle, the application said that the judge ought to have disclosed the fact of his son’s engagement to the parties appearing in the matter. This fact assumes relevance, Sreshtra said, as Justice Sharma’s son was appointed as the standing counsel for the ECI before the high court on July 10, 2024, after the appointment of the present CEC Gyanesh Kumar and one of the election commissioners, Sukhbir Singh Sandhu, on March 14, 2024.

If this fact was earlier known to them, they would have requested Justice Sharma’s recusal, the plea stated, while adding, “The absence of disclosure deprived the petitioners of an opportunity to raise that request before the opinions and order dated September 23 were pronounced.”