Chief Justice of India (CJI) Surya Kant on Wednesday said that a decision will soon be taken on listing the application seeking recall of an order referring the challenge to the law governing the appointment of the chief election commissioner and election commissioners to a Constitution bench.
The application was filed by Naman Sherstra, one of the petitioners who has challenged the validity of the CEC & ECs (Appointment, Conditions of Service and Term of Office) Act, 2023. The petitions had challenged the validity of the act on the ground that it violated the 2023 judgment of the top court in Anoop Baranwal by replacing CJI in the selection panel with a Union minister. This order was passed on September 23 following a split verdict by the judges on whether the matter should be heard by a Constitution bench. On September 23, the bench of justices Datta and Sharma gave a split verdict on whether the 2023 law should be referred to a Constitution bench. Sherstra said that the fact about justice Sharma’s son being engaged as an ECI counsel became known from news reports that surfaced two days after the September 23 order was delivered.
This affected the selection process of CEC and ECs which impacted free and fair elections. The application seeks a recall of an order passed by justices Dipankar Datta and Satish Chandra Sharma, who referred the challenge to the law to the CJI for the constitution of a five-judge bench.
“We will examine and take a call,” the CJI said, when the application was mentioned for urgent hearing by senior advocate Gopal Sankaranarayanan and advocate Vishal Sinha. “The question is whether the established circumstances, viewed objectively, give rise to a reasonable apprehension concerning impartiality,” the application said. “The absence of disclosure deprived the petitioners of an opportunity to raise that request before the opinions and order dated September 23 were pronounced,” it added.
justice Sharma held that the matter should be heard by a five-judge bench since it involves substantial questions on the interpretation of Constitution While justice Datta was of the view that the need does not arise since the challenge to the Act can be considered based on the settled principles laid down by earlier judgments.
