A application has been filed before the Supreme Court seeking the recall of its recent split verdict on the need to refer the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger bench.
The application was mentioned before a Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana by Senior Advocate Gopal Sankaranarayanan.
"We will examine and take a call," CJI Kant said on the request to list the application for hearing.
Sankaranarayanan informed the Court that he had earlier mentioned the application before a Bench headed by Justice Dipankar Datta.
"There is a split verdict on the Chief Election Commissioner issue. We have mentioned an application for recall of the judgment. I mentioned the case before the Justice Dipankar Datta-led Bench. He asked us to mention the matter here because the matter has been released from his board," the senior counsel said.
A Bench of Justice Datta and Justice Satish Chandra Sharma on September 23 had delivered separate views on the petitions challenging Sections 7 and 8 of the 2023 Act, under which the selection panel comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister. A connected plea challenged the appointments of Gyanesh Kumar, now Chief Election Commissioner, and Election Commissioner Sukhbir Singh Sandhu.
The Centre said that the matter should be referred to a larger bench since it involves a Constitutional question. Justice Datta rejected the request, but Justice Sharma agreed.
Despite the difference of opinion, the Bench urged the Chief Justice of India (CJI) to consider setting up a Constitution Bench to hear the matter.
A separate curative petition filed by Dr Jaya Thakur is also pending before the top court.
It states that Justice Sharma, who agreed with the Central government's demand to refer the matter to a larger bench, should not have heard the matter on account of a direct conflict of interest.
Thakur has argued that there was a "reasonable apprehension of bias and propriety" since Justice Sharma's son, Siddharth Sharma, is a standing counsel for the Election Commission of India (ECI) before the Madhya Pradesh High Court since July 2024.
Thakur has sought exemption from first filing a review, arguing that it would be listed before the same bench and thus "no useful purpose would be served".
Senior Advocate Vijay Hansaria, who settled the petition and certified it as fit for curative jurisdiction, wrote that he had "no doubt that His Lordship has decided the case on its own merits."
"However, on the principle that justice must not only be done but also seem to be done, it would have been appropriate that Hon'ble Mr. Justice Satish Chandra Sharma recused himself from hearing the present set of petitions," he added.
[Read live thread of hearing]