Chief Justice of India (CJI) Surya Kant on Wednesday said that a decision will soon be taken on listing the application seeking recall of an order referring the 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, when the application was mentioned for urgent hearing by senior advocate Gopal Sankaranarayanan and advocate Vishal Sinha.
The application was filed by Naman Sherstra, one of the petitioners who has challenged the validity of the CEC & ECs (Appointment, Conditions of Service and Term of Office) Act, 2023.
The petitions had challenged the validity of the act on the ground that it violated the 2023 judgment of the top court in Anoop Baranwal by replacing CJI in the selection panel with a Union minister. This affected the selection process of CEC and ECs which impacted free and fair elections.
The application seeks a recall of an order passed by justices Dipankar Datta and Satish Chandra Sharma, who referred the challenge to the law to the CJI for the constitution of a five-judge bench. This order was passed on September 23 following a split verdict by the judges on whether the matter should be heard by a Constitution bench.
The recall is sought on the grounds that justice Sharma ought to have recused himself from the matter as his son appears for the Election Commission of India (ECI) before the Madhya Pradesh high court.
{{/usCountry}}The recall is sought on the grounds that justice Sharma ought to have recused himself from the matter as his son appears for the Election Commission of India (ECI) before the Madhya Pradesh high court.
{{/usCountry}}On September 23, the bench of justices Datta and 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 since the challenge to the Act can be considered based on the settled principles laid down by earlier judgments, justice Sharma held that the matter should be heard by a five-judge bench since it involves substantial questions on the interpretation of Constitution.
The two judges, however, agreed that the matter be placed before the CJI to refer the petitions to a Constitution bench.
The plea mentioned on Wednesday seeks recall of justice Sharma’s order, and the common order passed by the bench referring the matter to a Constitution bench. It does not seek recall of justice Datta’s separate opinion.
The application states that the matter was heard by the bench of justices Datta and Sharma on five occasions -- May 6, May 7, May 14, May 27 July 30 -- and on none of the occasions did justice Sharma seek recusal. It was on July 30 that the orders were reserved on the issue of whether the petitions should be heard by a Constitution bench of five judges.
Sherstra said that the fact about justice Sharma’s son being engaged as an ECI counsel became known from news reports that surfaced two days after the September 23 order was delivered.
“The question is whether the established circumstances, viewed objectively, give rise to a reasonable apprehension concerning impartiality,” the application said. “The absence of disclosure deprived the petitioners of an opportunity to raise that request before the opinions and order dated September 23 were pronounced,” it added.