Why SC Is Reconsidering Its Split Verdict On CEC Appointment Law

Amid protests and political opposition over Chief Election Commissioner Gyanesh Kumar, the Supreme Court on Wednesday agreed to examine a plea seeking recall of its September 23 split verdict on the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners.

The plea has raised concerns over the composition of the bench that heard the challenge to the law, particularly over the professional association of Justice Satish Chandra Sharma’s son with the Election Commission of India (ECI).

Chief Justice of India Surya Kant told the petitioner that the court would examine the application seeking the setting up of a Constitution Bench before taking a call.

The development comes days after Justice Dipankar Datta directed a separate recall plea to the CJI, saying such applications would have to be dealt with by the “master of the roster”.

During the October 2 hearing, Justice Datta told senior advocate Gopal Sankaranarayanan, “All applications and petitions will be decided by the master of the roster. We will not entertain these matters piecemeal. You approach the CJI.”

There are now two separate challenges seeking recall of the September 23 split verdict.

What Are The Recall Pleas About?

A curative petition was filed by Congress leader Jaya Thakur, one of the petitioners challenging the 2023 CEC appointment law. The petition seeks recall on the grounds of a “reasonable likelihood of bias” and “propriety”, following reports about Justice Sharma’s son, Siddharth Sharma.

The petition raised concerns over Justice Sharma’s son being a standing counsel for the ECI in the Madhya Pradesh High Court.

A second application was filed by Naman Sherstra. It specifically seeks recall of Justice Sharma’s opinion favouring reference of the constitutional challenge to a Constitution Bench.

The plea says the matter was heard on five occasions, but Justice Sharma did not disclose his son’s professional association with the ECI during those hearings.

The current recall plea does not allege actual bias or bad faith. Instead, it argues that the circumstances created a “reasonable apprehension concerning impartiality”. It further says that the non-disclosure deprived the petitioners of an opportunity to seek Justice Sharma’s recusal before the September 23 opinions were delivered.

What Was The September 23 Verdict?

The September 23 verdict was a split decision between Justice Datta and Justice Sharma.

Justice Datta rejected the need for a larger bench, holding that the challenge to the 2023 law could be examined on principles already settled by earlier judgments.

Justice Sharma, however, held that the petitions raised substantial constitutional questions and should be heard by a Constitution Bench under Article 145(3).

The judges subsequently passed a common order directing that the papers be placed before the CJI for consideration of whether a Constitution Bench should be constituted.

What Is The 2023 CEC Law?

The dispute centres on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law replaced the CJI on the selection panel with a Union Cabinet minister nominated by the Prime Minister. The panel therefore comprises the Prime Minister, the Leader of Opposition and the Union minister nominated by the Prime Minister.

With the CJI-led bench now agreeing to examine the recall application, the question of whether Justice Sharma’s opinion should be reconsidered is back before the Supreme Court, while the larger constitutional challenge to the CEC appointment law remains unresolved.