CJI agrees to take a call on hearing plea to recall split verdict in CEC appointments law case

The Chief Justice of India, Surya Kant, agreed to examine the application and take a decision on hearing it. The application asks the Supreme Court to recall the September 23 split verdict in the challenge to the Election Commissioners’ appointments law. This matters because it raises a disclosure question involving one judge’s immediate family member.

Senior advocate Gopal Sankaranarayanan orally mentioned the application before the Chief Justice. The applicant, Naman Sherstra, questions why Justice Satish Chandra Sharma did not disclose during five hearings that his son was standing counsel for the Election Commission of India. Justice Dipankar Datta had earlier directed the lawyer to mention the matter before the Chief Justice.

The Chief Justice has not yet recalled the verdict. He has agreed only to examine whether the application should be heard. Another petitioner, Jaya Thakur, has already filed a curative petition seeking recall on grounds including reasonable apprehension of bias and propriety.

A split verdict is a decision in which judges hearing the same case disagree instead of reaching one shared opinion. It matters because the disagreement can leave an important legal issue unresolved and require a further procedural step. In this case, the dispute concerned whether the challenge to the 2023 appointments law should go to a Constitution Bench.

Justice Dipankar Datta, the lead judge, declined to refer the challenge to five judges. Justice Satish Chandra Sharma, the puisne judge, took the opposite view and supported a reference. Although their opinions differed, both judges later passed a common order asking the Chief Justice to allocate the case to a Constitution Bench.

The recall application objects to that common order and seeks recall of Justice Sharma’s opinion. It does not specifically challenge Justice Datta’s separate opinion. The Supreme Court must now decide whether to hear the application.

The original decision came from a two-judge Division Bench. Justice Dipankar Datta gave one opinion, while Justice Satish Chandra Sharma gave the opposing opinion. Their disagreement produced the split verdict of September 23. The immediate issue was whether the challenge to the Election Commissioners’ appointments law required consideration by a larger Bench.

Justice Datta declined the reference to a Constitution Bench. Justice Sharma supported it. Despite that disagreement, the two judges issued a common order directing the Chief Justice of India to allocate the case to a Constitution Bench. The application now objects to this common order and seeks recall of Justice Sharma’s opinion.

The Constitution Bench being sought would consist of five judges. The article does not state that such a Bench has been constituted or that the reference has already occurred. The Chief Justice has agreed to examine whether the recall application should be heard, so the next step remains pending.

The change concerned who would sit on the panel selecting the Chief Election Commissioner and Election Commissioners. In the Anoop Baranwal judgment described in the article, the Prime Minister-led panel included the Chief Justice of India as a neutral member. The Opposition Leader of the Lok Sabha was also part of the arrangement described by Justice Datta.

The 2023 law replaced the Chief Justice with a Union Minister nominated by the Prime Minister. Justice Datta viewed this replacement as giving the Executive veto power over appointments. He also said it reduced the Opposition Leader’s presence on the panel to an ornamental status. The change therefore shifted the balance within the selection process.

Justice Datta considered the law prima facie wrong for ignoring the earlier Constitution Bench judgment. He linked the issue to the independence of election administration and free and fair elections. The challenge may now be considered by a five-judge Constitution Bench if the procedural dispute proceeds.

The concern is about disclosure and propriety, not a proven finding of bias. The application says Justice Satish Chandra Sharma’s son, Siddharth Sharma, was appointed standing counsel for the Election Commission before the Madhya Pradesh High Court on July 10, 2024. The judge did not disclose this engagement during five hearings in the case.

The case directly challenged the statutory composition of the Election Commission and the appointment of its functionaries. The application says the engagement continued after Gyanesh Kumar became Chief Election Commissioner and Dr. Vivek Joshi was appointed. It argues that the institution and its incumbent members may have known about the appointment.

Naman Sherstra’s application expressly does not impute actual bias, motive, or bad faith to Justice Sharma. Instead, it asks whether an immediate family member’s professional engagement with the institution required disclosure to the parties. Jaya Thakur has separately alleged reasonable apprehension of bias and impropriety.

If the split verdict is recalled, the disputed part of the September 23 decision could be reconsidered. The application specifically seeks recall of Justice Sharma’s opinion and objects to the common order sending the case toward a Constitution Bench. The court has not yet decided whether to hear, allow, or reject that request.

If the challenge is sent to a Constitution Bench, five judges would examine the constitutional validity of the 2023 law. The larger Bench would consider the issue that divided the original two-judge Bench: whether the law’s replacement of the Chief Justice in the selection panel is constitutionally valid. Justice Datta and Justice Sharma reached opposite views on the reference.

The immediate next step is procedural. Chief Justice Surya Kant agreed to examine whether the application should be heard. A separate curative petition filed by Jaya Thakur also seeks recall. The article does not state what the Supreme Court will ultimately decide about either petition or the law.

The appointment system matters because Election Commissioners oversee institutions connected to elections. Justice Dipankar Datta said their appointment and functioning were integral to free and fair elections. A selection process is therefore important not only as a formal procedure but also because it can affect confidence in the election administration.

The earlier arrangement described in the Anoop Baranwal judgment included the Chief Justice of India as a neutral member of a Prime Minister-led panel. The 2023 law replaced the Chief Justice with a Union Minister nominated by the Prime Minister. Justice Datta said this gave the Executive veto power and made the Opposition Leader’s role ornamental.

That is why the constitutional challenge has wider significance. The question is whether the new panel structure protects a balanced process for appointing CECs and ECs. The Supreme Court may consider that question through a five-judge Constitution Bench, although the recall and hearing applications remain pending.