The Chief Justice of India (CJI) Surya Kant on Wednesday said the Supreme Court will soon decide on listing an application seeking recall of its 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. This order came to be passed on September 23 following a split verdict by the judges on whether the matter should be heard by a five-judge bench. On September 23, a bench of Justices Dipankar Datta and Satish Chandra Sharma gave a split verdict on whether the 2023 law should be referred to a Constitution bench. He said that substantial questions on the interpretation of the Constitution arise in the matter and under Article 145(3), the same should be heard by a bench of at least five judges of the Supreme Court. The application states the batch of petitions against the 2023 law was heard by the bench of Justices Datta and Sharma on five occasions – May 6, May 7, May 14, May 27 and July 30. It was on July 30 that orders were reserved on the issue of whether the petitions should be heard by a Constitution bench of five judges.
The application has sought recall of the order passed by a bench of Justices Dipankar Datta and Satish Chandra Sharma referring the challenge to the law to CJI for constituting a five-judge Constitution bench. The two judges passed a common order placing the matter before CJI for referring the petitions to a Constitution bench. However, not on a single occasion did the judge convey his possible conflict of interest and seek recusal.
“We will examine and take a call,” CJI said when the application was mentioned for urgent hearing by senior advocate Gopal Sankaranarayanan along with advocate Vishal Sinha.
Justice Sharma held a different view While Justice Datta was of the view that the need does not arise as the challenge to the Act can be considered based on the settled principles laid down by earlier judgments.
