‘We will examine and take a call’: CJI Surya Kant on plea to recall CEC law order

Chief Justice of India Surya Kant on Wednesday said the Supreme Court would examine and soon take a call on an application seeking recall of its September 23 order in the challenge to the law governing the appointment of the Chief Election Commissioner and Election Commissioners.

The application was mentioned for urgent listing before a bench comprising CJI Surya Kant and Justices Joymalya Bagchi and V Mohana by senior advocate Gopal Sankaranarayanan, assisted by advocate Vishal Sinha. “We will examine and take a call,” the CJI said after being informed about the plea.

Recall plea before CJI

The application has been 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.

Sankaranarayanan told the CJI-led bench that the application had earlier been mentioned before Justice Dipankar Datta. Justice Datta had asked the petitioner to approach the Chief Justice, who as master of the roster would decide how the matter should proceed.

The senior advocate also informed the court that a separate curative petition had been filed by another petitioner concerning the September 23 decision. He maintained that the present proceeding was specifically an application seeking recall.

Why recall is sought

The recall application raises an issue concerning Justice Satish Chandra Sharma, who was part of the two-judge bench that delivered the September 23 split verdict.

The applicant has said Justice Sharma’s son, Siddharth Sharma, is standing counsel for the Election Commission before the Madhya Pradesh High Court and contended that this association ought to have been disclosed when the matter was being heard.

The application argues that the circumstances give rise to a question of perceived impartiality and seeks recall of Justice Sharma’s opinion. Significantly, it states that it does not allege actual bias, motive or lack of good faith on the part of the judge.

The contention over conflict of interest is the petitioner’s case and has not been judicially determined.

Split verdict in September

On September 23, a bench of Justices Dipankar Datta and Satish Chandra Sharma delivered differing opinions on whether petitions challenging the 2023 law should be considered by a five-judge Constitution Bench.

Justice Datta was of the view that a larger-bench reference was unnecessary and that the constitutional challenge could be decided on the basis of principles already settled by earlier judgments.

Justice Sharma took a different view, holding that the case raised substantial questions concerning interpretation of the Constitution and should therefore be heard by a Constitution Bench of at least five judges.

Given the difference between the two judges, the matter was placed before the Chief Justice for considering the constitution of an appropriate bench for an authoritative determination of the constitutional questions.

CJI removed from selection panel

At the heart of the litigation is the 2023 law enacted by Parliament to govern the appointment, service conditions and tenure of the CEC and Election Commissioners.

Under the law, candidates for the posts are recommended by a three-member selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet minister nominated by the Prime Minister.

The arrangement does not include the Chief Justice of India.

This differs from the interim mechanism laid down by a five-judge Constitution Bench of the Supreme Court in its March 2023 judgment in Anoop Baranwal versus Union of India.

In that judgment, the court directed that until Parliament enacted a law, appointments to the Election Commission would be made on the recommendation of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the CJI.

Parliament subsequently enacted the 2023 law under Article 324(2), replacing the CJI on the selection committee with a Union Cabinet minister.

Law faces constitutional challenge

Petitioners challenging the legislation have argued that excluding the CJI from the selection committee gives the executive a dominant position in the appointment process and could affect the institutional independence of the Election Commission.

The Centre has defended Parliament’s power to enact the legislation, pointing to Article 324(2), which expressly contemplates appointments being made subject to a law enacted by Parliament.

The constitutional validity of the legislation has not yet been finally decided by the Supreme Court.

The pending petitions also concern provisions of the law dealing with the composition and functioning of the selection mechanism and have raised broader questions about safeguarding the independence of the constitutional body responsible for conducting elections.

Separate curative plea pending

A separate curative petition has also been filed by Congress leader Jaya Thakur, another petitioner in the challenge to the 2023 law. That petition similarly raises concerns over Justice Sharma’s participation in the September proceedings because of his son’s professional association with the Election Commission.

The recall application and the curative petition are procedurally distinct. The Supreme Court will have to determine how the pending applications are to be dealt with before the underlying challenge progresses further.

For now, the CJI has not recalled the September 23 order or accepted the allegations raised in the application. His statement on Wednesday was limited to saying that the court would examine the request and decide the next course of action.