New Delhi: One of the petitioners challenging the constitutional validity of the 2023 law on the appointment and service conditions of the Chief Election Commissioner (CEC) and Election Commissioners has urged the Supreme Court to recall Justice Satish Chandra Sharma’s opinion in a recent split judgment.
Justice Sharma, who differed from Justice Dipankar Datta, had favoured referring the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a Constitution bench.
In contrast, Justice Datta held that the two-judge bench had full authority to hear the case on its merits. If the umpire is picked by the captain of one side and that team goes on to win the match, even correct decisions could carry “the patina of suspicion”, he said on 23 September, referring to the current composition of the panel selecting the CEC and ECs.
Now, advocate and petitioner Naman Sherstra has contended that the judge should have disclosed that his son Siddharth Sharma was on the Election Commission’s panel counsel in the Madhya Pradesh High Court.
Senior advocate Gopal Sankaranarayanan mentioned the application Wednesday before a Chief Justice of India (CJI) Surya Kant-led bench, which said that it would examine the plea.
The petitioner has also sought a fresh consideration by an appropriate two-judge bench to revisit the 23 September split order, besides asking for a recall of the unanimous opinion of Justices Datta and Sharma’s bench, requesting the CJI to list the petitions before a five-judge bench.
The batch of petitions want the top court to invalidate the law on the grounds that it is in the teeth of SC’s decision in the Anoop Barnwal case, which had, while laying out a temporary appointment mechanism, directed the Centre to frame the rules to select CEC and ECs.
The top court did so while emphasising that the poll body should be insulated from executive influence and must function independently. It was against this backdrop that the 23 September split verdict was given by the two-judge bench.
What recall plea says
Sherstra has raised a specific question: whether Justice Sharma should have disclosed his son’s professional engagement with the EC while hearing a case in which the functioning and appointments of the poll panel were under challenge.
Siddharth Sharma’s engagement with the Commission began on 10 July 2024 and continued after Gyanesh Kumar became the CEC and Vivek Joshi was appointed as an Election Commissioner, the plea says.
Gyanesh Kumar and Election Commissioner Sukhbir Singh Sandhu were among the EC members whose appointments were directly challenged in the connected proceedings.
Sherstra said he was unaware of Siddharth’s engagement during the five hearings before Justices Datta and Sharma. They learnt about it only after the bench delivered its opinions on 23rd September.
The petitioner quoted an article from a prominent website published on 25th September as reference. Had the disclosure been made earlier, he argued, he would have sought Justice Sharma’s recusal.
The principle, according to them, is that the test for judicial bias is not necessarily proof of actual prejudice, but whether the circumstances create a reasonable apprehension regarding impartiality. It cites earlier Supreme Court decisions including Ranjit Thakur vs Union of India (1987), and Davinder Pal Singh Bhullar vs State of Punjab (2011)
The verdict in question
On 23 September, Justices Datta and Sharma delivered separate opinions on whether the challenge to the 2023 law required consideration by a Constitution bench.
While Justice Datta rejected the Centre’s request for a larger bench, Justice Sharma took the view that the matter involved a substantial question of law warranting consideration by a larger bench. Both judges, however, agreed that the case should be placed before the CJI for deciding the future course of action.
Sherstra’s application specifically says it does not seek recall of Justice Datta’s opinion. Instead, it seeks a recall of the common order passed by the bench. The petitioner also seeks fresh consideration of the unanimous order and Justice Sharma’s order.
The application was initially not entertained by Justice Datta’s court on 1 October, with the petitioner being asked to approach the CJI, as applications in the matter would be dealt by the master of the roster. The CJI-led bench has now accepted the petition.
Aditya Edara is a TPSJ alum, currently interning with ThePrint.
(Edited by Tony Rai)