सुप्रीम कोर्ट ने CEC‑EC नियुक्ति कानून को संवैधानिक बेंच में भेजे जाने वाले फैसले की पुनः समीक्षा का प्रस्ताव स्वीकार किया

SC to consider plea for recall of verdict referring law on appointment of CEC, ECs to Constitution Bench

'We will examine and then take a call (on listing the matter),' the CJI said

The Supreme Court on Wednesday agreed to consider examining a plea seeking recall of its recent order referring the law on appointment of the Chief Election Commissioner (CEC) and Election Commissioners (EC) to a five-judge Constitution Bench for testing its validity, despite delivering a split verdict.

Chief Justice of India Surya Kant said that he will look into the application for recall of the split verdict on petitions challenging the Chief Election Commissioner and Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 after senior advocate Gopal Sankaranarayanan mentioned it for listing.

Sankaranarayanan sought to clarify that it was an interlocutory application for recall of the September 23 verdict passed by a Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma and that another petitioner has filed a curative petition against the split verdict.

"We will examine and then take a call (on listing the matter)," the CJI said, adding he had read that a curative petition has also been filed.

"But curative is to be preceded by a review (petition)," Sankaranarayanan said, reiterating that his matter was an interlocutory application.

The recall of the order has been sought on the ground of alleged conflict of interest of Justice Sharma.

"The Petitioners state on record that the engagement of Hon'ble Justice Satish Chandra Sharma's son as the standing counsel for the EC before the Madhya Pradesh High Court was not disclosed to the parties by Hon'ble Justice Satish Chandra Sharma at any point in time during the 5 hearings in the matter,” applicant Naman Sherstra submitted.

On September 23, a Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma delivered a split verdict on the validity of the 2023 law — that excluded the Chief Justice of India from the panel for selecting the CEC and ECs – and referred the issue to a five-judge Constitution Bench for an effective and authoritative pronouncement.

"Inclusion of a Cabinet Minister (in the selection panel) fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental," Justice Datta noted. If free and fair elections were to be ensured, it’s axiomatic that the Election Commission must not only be an independent body but also be seen to act independently, Justice Datta said.

However, disagreeing with Justice Datta, Justice Sharma held that the issue needed to be authoritatively determined by a Constitution Bench in terms of Article 145(3) of the Constitution.

The petitioners — Association for Democratic Reforms, Jaya Thakur, Lok Prahari and others — have challenged the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023 that replaced the CJI with a Union Cabinet Minister in the three-member selection panel.

Thakur has filed a curative petition seeking recall of the September 23 order and a fresh hearing before an appropriate Bench.

The Act continues to hold the field after the top court on March 21, 2024 refused to stay its operation.

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