The Chief Justice of India (CJI) Surya Kant on Wednesday said the Supreme Court will soon decide on listing an application seeking recall of its 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,” CJI said when the application was mentioned for urgent hearing by senior advocate Gopal Sankaranarayanan along with 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 application has sought recall of the order passed by a bench of Justices Dipankar Datta and Satish Chandra Sharma referring the challenge to the law to CJI for constituting a five-judge Constitution bench. This order came to be passed on September 23 following a split verdict by the judges on whether the matter should be heard by a five-judge bench.
Sankaranarayanan told CJI that on October 1, the matter was mentioned before Justice Datta, who refused to entertain it and asked him to approach CJI. The court asked him whether any other matter had also been filed in this regard. Sankaranarayanan informed the court about a curative plea filed by one of the petitioners, which may be decided on its own merits. He pointed out that the present plea is an application seeking recall.
The application seeks recall on the ground that Justice Sharma ought to have recused as his son appears for the Election Commission of India (ECI) before the Madhya Pradesh high court.
{{/usCountry}}The application seeks recall on the ground that Justice Sharma ought to have recused as his son appears for the Election Commission of India (ECI) before the Madhya Pradesh high court.
{{/usCountry}}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 CJI for referring the petitions to a Constitution bench.
The plea seeks recall only of Justice Sharma’s order and the common order passed by the bench referring the matter 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, Justice Sharma disclosed this fact or sought 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 application states the batch of petitions against the 2023 law 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. However, not on a single occasion did the judge convey his possible conflict of interest and seek recusal.
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.”