An application has been moved before the Supreme Court seeking recall of its recent split verdict on whether petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be referred to a larger bench.
Senior Advocate Gopal Sankaranarayanan mentioned the application before a Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana. The CJI said the Court would examine the request and take a call on listing the matter.
Sankaranarayanan told the Bench that the application had earlier been mentioned before a Bench headed by Justice Dipankar Datta. He said Justice Datta had asked him to mention the matter before the CJI since the case had been released from his board.
Split Verdict On Larger Bench Reference
On September 23, a Bench of Justices Dipankar Datta and Satish Chandra Sharma delivered differing opinions on the Centre’s request to refer the challenge to Sections 7 and 8 of the 2023 Act to a larger bench.
Under the law, the selection committee for appointing the Chief Election Commissioner and Election Commissioners consists of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister.
A connected petition also challenges the appointments of Gyanesh Kumar, who is now the Chief Election Commissioner, and Election Commissioner Sukhbir Singh Sandhu.
The Centre had sought reference of the matter to a larger bench on the ground that it involved a constitutional question. Justice Datta rejected the request, while Justice Sharma agreed with it.
Despite their differing conclusions, the Bench requested the Chief Justice of India to consider constituting a Constitution Bench to hear the matter.
Curative Petition Also Pending
A separate curative petition filed by Dr Jaya Thakur is also pending before the Supreme Court.
The petition contends that Justice Satish Chandra Sharma should not have heard the case because of an alleged direct conflict of interest. Thakur has argued that there was a reasonable apprehension regarding bias and propriety since Justice Sharma’s son, Siddharth Sharma, has been a standing counsel for the Election Commission of India before the Madhya Pradesh High Court since July 2024.
Thakur has also sought exemption from first filing a review petition, arguing that such a plea would be placed before the same Bench and would therefore serve no useful purpose.
Senior Advocate Vijay Hansaria, who settled the curative petition and certified it as fit for invocation of the Court’s curative jurisdiction, stated that he had no doubt that Justice Sharma decided the case on its merits. He nevertheless said that, applying the principle that justice must not only be done but must also appear to be done, it would have been appropriate for Justice Sharma to recuse himself from hearing the petitions.
