SC to examine recall plea against split verdict on CEC appointment law

The Supreme Court on Wednesday agreed to examine an application seeking recall of its September 23 split verdict in a case challenging the 2023 law governing the appointment of the Chief Election Commissioner and other election commissioners.

Chief Justice Surya Kant said, "We will examine and take a call", after senior advocate Gopal Sankaranarayanan mentioned the application before a bench comprising the CJI and Justices Joymalya Bagchi and V Mohana.

The court did not immediately fix a date for hearing the application.

Sankaranarayanan told the bench that the plea had earlier been mentioned before a bench headed by Justice Dipankar Datta, which released the matter and asked him to approach the CJI.

The senior advocate clarified that the plea was an interlocutory application seeking recall of the judgment. He said a separate curative petition filed in the matter would follow its own procedure and could require a review petition first.

Plea raises disclosure issue

According to LiveLaw, the recall application alleges that Justice Satish Chandra Sharma did not disclose during the proceedings that his son was associated with the Election Commission as its standing counsel before the Madhya Pradesh High Court.

Justice Sharma was part of the two-judge bench that delivered the split verdict on September 23.

The allegations concerning the judge's son have not been independently verified from the court filing.

The application claims that the association was not disclosed during five hearings in the case and says the applicants would have sought Justice Sharma's recusal had they been aware of it before the verdict.

LiveLaw reported that the application was filed by Naman Sherstra through advocate-on-record Pawan Reley. It seeks recall of the common order and Justice Sharma's opinion, but not Justice Datta's opinion.

The applicants have said they are not alleging bias, motive or lack of good faith against the judge. Instead, they have raised the question of whether the professional engagement of an immediate family member with the Election Commission ought to have been disclosed to the parties.

The application, according to the report, cites public records showing that Justice Sharma's son was engaged as the poll panel's standing counsel from July 10, 2024. It also annexes Madhya Pradesh High Court orders dated July 29 and September 1, 2026, which the applicants say record his appearances for the Election Commission.

Separate curative plea

A separate curative petition filed by Jaya Thakur has raised a similar objection.

A PTI report published on September 30 said Thakur had alleged a reasonable apprehension of bias and raised questions of propriety after learning that Justice Sharma's son was on the Election Commission's legal panel.

Thakur's plea sought exemption from first filing a review petition, arguing that a review would ordinarily be considered by the same judges who delivered the original order and would therefore serve no useful purpose.

Split verdict on appointment law

Justices Datta and Sharma delivered separate opinions on September 23 on the challenge to the 2023 law governing appointments to the Election Commission.

Justice Datta declined the Centre's request to refer the matter to a larger bench, while Justice Sharma favoured consideration of the challenge by a Constitution bench.

The judges subsequently passed a common order directing that the matter be placed before the CJI for consideration of an appropriate bench.

The underlying petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

In March 2023, a five-judge Constitution bench had held that the President should appoint the CEC and election commissioners on the advice of a three-member panel comprising the prime minister, the Leader of the Opposition in the Lok Sabha and the CJI.

Parliament subsequently replaced that arrangement through the 2023 law with a committee comprising the prime minister, a Union Cabinet minister nominated by the prime minister and the Leader of the Opposition in the Lok Sabha.

(With inputs from PTI)