CJI Surya Kant Says SC To Soon Decide On Plea Seeking Recall Of CEC Law Order: ‘Will Examine And Take A Call’

Chief Justice of India Surya Kant on Wednesday said the Supreme Court would soon decide on listing an application seeking recall of an order referring a challenge to the law governing the appointment of the Chief Election Commissioner and Election Commissioners to a Constitution Bench.

“We will examine and take a call,” the CJI said after senior advocate Gopal Sankaranarayanan, assisted by advocate Vishal Sinha, mentioned the application for urgent hearing.

The application has been filed by Naman Sherstra, one of the petitioners challenging the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The plea seeks recall of the September 23 order passed by a bench of Justices Dipankar Datta and Satish Chandra Sharma, which referred the matter to the CJI for consideration of its listing before a five-judge Constitution Bench. The order followed a split verdict between the two judges on whether the challenge to the 2023 law required consideration by a Constitution Bench.

Plea Seeks Recall Of Justice Sharma’s Order

Sankaranarayanan told the CJI that the matter was mentioned before Justice Datta on October 1, but the judge declined to entertain the request and directed him to approach the Chief Justice.

The bench asked whether any other matter had been filed in connection with the issue. Sankaranarayanan informed the court that one of the petitioners had also filed a curative plea, which could be considered independently. He clarified that the present plea was specifically an application seeking recall of the earlier order.

The application seeks recall primarily on the ground that Justice Sharma ought to have recused himself because his son appears as counsel for the Election Commission of India before the Madhya Pradesh High Court.

September 23 Split Verdict

On September 23, Justices Dipankar Datta and Satish Chandra Sharma delivered separate opinions on whether the challenge to the 2023 appointment law should be referred to a Constitution Bench.

Justice Datta held that such a reference was not necessary, observing that the challenge could be examined on the basis of principles already settled by earlier judgments.

Justice Sharma, however, took a different view, holding that the case raised substantial questions concerning the interpretation of the Constitution. He said that under Article 145(3), such questions should be heard by a bench of at least five Supreme Court judges.

Following the split verdict, the two judges passed a common order placing the matter before the CJI for consideration of its reference to a Constitution Bench.

The latest application seeks recall only of Justice Sharma’s order and the common order referring the matter to the CJI. It does not seek recall of Justice Datta’s separate opinion.

Plea Alleges Conflict Was Not Disclosed

The application states that the petitions challenging the 2023 law were heard by the bench of Justices Datta and Sharma on five occasions — May 6, May 7, May 14, May 27 and July 30.

According to the plea, the judges reserved their orders on July 30 on whether the petitions should be heard by a five-judge Constitution Bench. It alleges that on none of these occasions did Justice Sharma disclose that his son was appearing as counsel for the ECI before the Madhya Pradesh High Court or indicate that he was considering recusal.

Sherstra said the fact came to the petitioners’ knowledge through news reports that emerged two days after the September 23 order.

The plea argues that had the petitioners known about the alleged connection earlier, they could have sought Justice Sharma’s recusal before the opinions and order were pronounced.

It further states that the issue is whether the circumstances, viewed objectively, could give rise to a reasonable apprehension regarding impartiality. The application maintains that the alleged non-disclosure deprived the petitioners of an opportunity to raise the issue before the September 23 order was delivered.