Chief Justice of India (CJI) Surya Kant on Wednesday stated that the Supreme Court will soon examine and take a decision on listing an application seeking to recall its recent order referring the challenge to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to a five-judge Constitution Bench.
The observation came after Senior Advocate Gopal Sankaranarayanan, appearing alongside advocate Vishal Sinha, mentioned the application for urgent hearing before a bench comprising CJI Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana.
”We will examine and take a call,” CJI Surya Kant told counsel during the mentioning.
Background: The Split Verdict and Recusal Grounds
The recall application was filed by Naman Sherstra, one of the petitioners challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The challenge stems from a September 23 split verdict delivered by a two-judge bench of Justices Dipankar Datta and Satish Chandra Sharma:
- Justice Dipankar Datta held that the challenge could be decided on settled legal principles without sending it to a Constitution Bench.
- Justice Satish Chandra Sharma held that substantial constitutional interpretation questions were involved, requiring a five-judge Constitution Bench under Article 145(3) of the Constitution.
Due to the difference of opinion, a joint order placed the matter before the CJI on the administrative side.
Grounds for Recall Application
The applicant seeks the recall of Justice Sharma’s opinion and the resulting referral order on the grounds of an undisclosed potential conflict of interest. According to the plea, news reports that surfaced two days after the judgment revealed that Justice Sharma’s son appears as a counsel for the Election Commission of India (ECI) before the Madhya Pradesh High Court.
The application highlights that the batch of petitions was heard on five distinct dates—May 6, May 7, May 14, May 27, and July 30—before orders were reserved. The petitioner asserts that at no point was this potential conflict disclosed, depriving the petitioners of an opportunity to seek recusal prior to the delivery of the order.
Clarifying the scope of the prayer, Sankaranarayanan informed the court that the application strictly seeks recall of Justice Sharma’s opinion and the common referral order, while leaving Justice Datta’s separate opinion untouched.
