India
oi-Madhuri Adnal
The Supreme Court will soon decide whether to hear a plea seeking the recall of its order that paved the way for a five judge Constitution bench to examine the challenge to the law governing the appointment of the Chief Election Commissioner and Election Commissioners.
Chief Justice of India Surya Kant on Wednesday said the court would examine the plea and take a decision after senior advocate Gopal Sankaranarayanan, appearing with advocate Vishal Sinha, mentioned it for urgent hearing.
The Supreme Court will decide whether to examine a plea seeking recall of its September 23 order, which directed a Constitution bench to hear challenges to the 2023 Election Commissioner appointment law, based on allegations concerning Justice Sharma’s son’s work for the ECI.
“We will examine and take a call,” the CJI said.
The plea has been filed by Naman Sherstra, one of the petitioners who has challenged the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Sherstra is seeking the recall of the September 23 order passed by a bench of Justices Dipankar Datta and Satish Chandra Sharma. The order came after the two judges differed on whether the challenge to the 2023 law needed to be heard by a Constitution bench.
Sankaranarayanan told the CJI that he had mentioned the matter before Justice Datta on October 1, but the judge asked him to approach the Chief Justice instead.
The court also asked whether any other petition had been filed over the issue. Sankaranarayanan referred to a curative plea filed by another petitioner, but made it clear that the present application was specifically seeking recall of the September 23 order.
Plea questions Justice Sharma’s participation
At the centre of the recall plea is a claim that Justice Sharma should have recused himself from the case.
The application points out that Justice Sharma’s son appears for the Election Commission of India before the Madhya Pradesh High Court.
The petitioners say they were not aware of this connection when the case was being heard. They have pointed out that the bench heard the matter five times, on May 6, May 7, May 14, May 27 and July 30.
On July 30, the judges reserved their orders on whether the challenge to the 2023 law should go before a five judge Constitution bench.
The plea says Justice Sharma did not disclose the connection with the ECI during any of these hearings or indicate that he intended to recuse himself.
The petitioners say they learnt about his son’s appearance for the ECI only through news reports that came out two days after the September 23 order.
They argue that had they known about it earlier, they could have asked Justice Sharma to step aside from the case.
“The absence of disclosure deprived the petitioners of an opportunity to raise that request before the opinions and order dated September 23 were pronounced,” the application said.
The plea also raises the question of whether the circumstances, viewed objectively, could create a reasonable apprehension about the judge’s impartiality.
Sherstra is not challenging Justice Datta’s separate opinion. The recall request is directed at Justice Sharma’s order and the common order through which the matter was sent to the CJI for consideration of a Constitution bench.
Why the judges differed
The September 23 order followed a split between Justices Datta and Sharma over the need for a Constitution bench to hear the challenge to the 2023 law.
Justice Datta had held that there was no need for a five judge bench, saying the challenge could be examined using principles already settled by earlier judgments.
Justice Sharma disagreed. He said the case involved substantial questions relating to the interpretation of the Constitution and, under Article 145(3), such questions must be heard by at least five judges.
With the two judges taking different positions, they passed a common order placing the matter before the CJI for deciding whether it should be referred to a Constitution bench.
The latest plea now seeks to undo that step, arguing that Justice Sharma’s participation itself needs to be reconsidered in view of the connection involving his son and the ECI.
The Supreme Court will now decide whether the recall application should be listed for hearing.
