India Supreme Court: CJI To Examine CEC-EC Law Recall Plea

• An application has been filed before the Supreme Court of India seeking to recall a split verdict on whether challenges to the 2023 CEC-EC appointment law should be referred to a larger bench.
• The split verdict saw Justice Dipankar Datta reject the referral, while Justice Satish Chandra Sharma argued for a Constitution Bench due to substantial constitutional questions.
• Senior Advocate Gopal Sankaranarayanan mentioned the recall plea to CJI Surya Kant, who stated the court would examine it.
• A separate curative petition has also been filed, alleging a reasonable apprehension of bias by Justice Sharma due to his son's role as Standing Counsel for the Election Commission of India.
• The underlying challenge targets Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which outlines the appointment process for election commissioners.

The Supreme Court's ultimate decisions on both the recall application and the curative petition will be instrumental in shaping the final judicial review process for the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The Supreme Court of India is currently addressing a significant application seeking the recall of a recent split verdict concerning the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This application, which aims to revisit the court's decision on whether challenges to the 2023 law should be referred to a larger bench, was brought before Chief Justice of India Surya Kant by Senior Advocate Gopal Sankaranarayanan. The Chief Justice acknowledged the request, stating the court would "examine and take a call" on the matter.

The split verdict, delivered last month by a division bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma, arose from a preliminary question regarding the necessity of a larger bench. Justice Datta concluded that there was no constitutional impediment or established precedent preventing the existing bench from hearing the petitions and consequently rejected the plea for a referral. Conversely, Justice Sharma held that the challenges to the 2023 law presented a substantial constitutional question that warranted consideration by a Constitution Bench. Senior Advocate Sankaranarayanan informed the Chief Justice that he had initially mentioned the recall application before a Justice Dipankar Datta-led bench, which subsequently directed him to present the matter to the Chief Justice's court after releasing it from its own board.

The legal dispute centers on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, specifically targeting Sections 7 and 8. Section 7 of this pivotal legislation outlines the process for appointing the Chief Election Commissioner and other Election Commissioners, stipulating that the President makes these appointments based on the recommendation of a Selection Committee. This committee is composed of the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

The writ petitions challenging the Act were heard on their merits across several dates in 2026, including May 6, May 7, May 14, May 27, and July 30, by the bench of Justices Datta and Sharma. During these proceedings, both the Attorney General and later the Solicitor General raised objections regarding the maintainability of the petitions being heard by a two-judge bench. These objections were grounded in Article 145(3) of the Constitution of India and the Supreme Court Rules, which address the composition of benches for cases involving substantial questions of law as to the interpretation of the Constitution. The differing opinions of the two judges on the reference question, delivered on September 23, 2026, directly reflect these fundamental procedural and constitutional concerns.

Adding another layer of complexity to the ongoing legal challenges, a curative petition has also been filed before the Supreme Court. This petition seeks relief against the September 23, 2026 order, which was part of the broader challenge to the constitutional validity of Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The curative petition has been filed under Article 32 read with Article 142 of the Constitution and Order XLVIII Rule 1 of the Supreme Court Rules, 2013, invoking the established principles laid down in the precedent-setting case of Rupa Ashok Hurra v. Ashok Hurra.

The central argument put forth by the petitioner in the curative plea is that Justice Sharma should not have participated in the proceedings. This contention stems from the fact that Justice Sharma's son, Siddharth Sharma, serves as the Standing Counsel for the Election Commission of India before the Madhya Pradesh High Court. The curative petition therefore asserts a "reasonable apprehension of bias and propriety" regarding Justice Sharma's involvement, particularly given that the proceedings directly challenged the statutory framework governing the appointment of the Chief Election Commissioner and Election Commissioners. This raises critical questions about judicial impartiality in cases directly impacting the institutions involved.

The ongoing legal developments surrounding the India Supreme Court CEC-EC law recall plea, coupled with the curative petition alleging judicial bias, hold profound implications for constitutional and election law practitioners across India. The Supreme Court's ultimate decisions on both the recall application and the curative petition will be instrumental in shaping the final judicial review process for the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. These rulings could establish significant precedents regarding the scope of judicial conduct, the standards for recusal, and the broader independence of the Election Commission, an institution central to India's democratic framework.

Lawyers specializing in constitutional and election law must closely monitor these proceedings, as the outcomes will not only determine the fate of the 2023 appointment law but also potentially redefine the parameters of judicial oversight and ethical considerations within the Indian judiciary. The interplay between the procedural questions of bench composition, the substantive challenges to the appointment mechanism, and the serious allegations of bias underscores the high stakes involved in these cases, making them a critical focal point for legal analysis and future practice.

Lawyers practicing constitutional and election law in India must closely follow the Supreme Court's decisions on the recall application and curative petition, as these will determine the final judicial review process for the 2023 CEC-EC appointment law and could establish important precedents regarding judicial conduct and the independence of the Election Commission.

Source: Original reporting via Live Law