Plea Moved Before Supreme Court For Recall Of CEC-EC Appointment Split Verdict

An application has been moved before Supreme Court of India seeking to recall the split verdict delivered last month by a division bench of the court on whether petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, should be referred to a larger Bench.

In the said judgment, the Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma differed on the preliminary question of reference, with Justice Datta rejecting the plea while Justice Sharma held that the matter warranted consideration by a Constitution Bench.

Today, Senior Advocate Gopal Sankaranarayanan mentioned an application before CJI Surya Kant led seeking recall of Supreme Court's recent split verdict in the challenge to 2023 law on appointment of Chief Election Commissioner and Election Commissioners.

"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 Justice Dipankar Datta-led Bench. He asked us to mention the matter here because the matter has been released from his board," Sankaranarayanan told the bench.

"We will examine and take a call," the CJI said in response.

Notably, a curative petition has also been filed before the Supreme Court seeking relief against its September 23, 2026 order in the 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 filed under Article 32 read with Article 142 of the Constitution and Order XLVIII Rule 1 of the Supreme Court Rules, 2013, invokes the principles laid down in Rupa Ashok Hurra v. Ashok Hurra. The petitioner's principal contention is that Justice Sharma ought not to have participated in the proceedings because his son, Siddharth Sharma, is the Standing Counsel for the Election Commission of India before the Madhya Pradesh High Court.

The curative has therefore alleged a “reasonable apprehension of bias and propriety” in Justice Sharma's participation in the case, particularly since the proceedings directly challenged the statutory framework governing the appointment of the Chief Election Commissioner and Election Commissioners.

The underlying challenge was filed against Sections 7 and 8 of the 2023 Act. Section 7 provides for appointment of the Chief Election Commissioner and other Election Commissioners by the President on the recommendation of a Selection Committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

The writ petitions were heard on merits on May 6, May 7, May 14, May 27 and July 30, 2026 by Justices Datta and Sharma. During the proceedings, the Attorney General and subsequently the Solicitor General raised objections concerning the maintainability of the petitions being heard by a two-judge Bench, relying on Article 145(3) of the Constitution and the Supreme Court Rules.

On September 23, both judges delivered separate opinions. Justice Datta held that there was no constitutional bar or precedent preventing the present Bench from hearing the petitions and rejected the plea for reference to a larger Bench. Justice Sharma, however, held that the petitions could be placed before the Chief Justice of India for consideration of constitution of a Constitution Bench under Article 145(3) and the Supreme Court Rules.

Both judges ultimately passed a common order directing that the papers be placed before the Chief Justice for consideration of the desirability of constituting a Constitution Bench to decide the validity of the 2023 Act.

Justice Datta, while pronouncing his opinion, noted that the Bench had heard the petitions for over five days and said that speaking in one voice would have served institutional cohesion. However, owing to the difference of opinion, he had to write a more elaborate order. He emphasised the constitutional principle that India is a government of laws and that those exercising power remain bound by law.

Justice Datta held that the challenge did not raise an unsettled substantial question of constitutional law warranting reference to a larger Bench. He observed that the 2023 Act had introduced “a new element to the canvas”, but held that the questions arising from it could be examined by applying settled constitutional principles. He therefore concluded that neither a constitutional bar nor precedent prevented the present Bench from hearing the petitions.

Justice SC Sharma disagreed with Justice Datta and held that the matter deserved consideration by a Constitution Bench. “With utmost humility, I am unable to persuade myself to accept all the observations made, or the line of reasoning adopted by His Lordship,” Justice Sharma said.

Justice Sharma held that whether Parliament was justified in excluding a neutral selector from the ECI appointment committee was an important question arising before the Supreme Court for the first time and involved a substantial question of law concerning interpretation of the Constitution. He relied on Article 145(3) and the Supreme Court Rules to hold that such a question could not finally be determined by the present two-judge Bench.

Justice Sharma rejected the argument that a Constitution Bench reference would reopen questions already settled in Anoop Baranwal. He held that whether the 2023 Act satisfies the constitutional requirement of free and fair elections had to be independently examined.

Mentioning Date: October 7, 2026

Bench: CJI Kant, Justice Bagchi and Justice Mohana