CEC Appointment Law: Recall Plea in Supreme Court
Why in News?
- On 7 October 2026, advocate Gopal Sankaranarayanan mentioned before Chief Justice Surya Kant an application to recall the Supreme Court's split verdict of 23 September 2026.
- That verdict concerned petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
- The applicant alleges that Justice Satish Chandra Sharma, who sat on the bench, did not disclose that his son is standing counsel for the Election Commission in the Madhya Pradesh High Court. This is an allegation, and the Court has not ruled on it.
- The Chief Justice said, "We will examine and then take a call." The Act remains in force.
Key Terminologies
- Split verdict
- A decision in which the two judges of a bench disagree. In this case, Justice Dipankar Datta and Justice Satish Chandra Sharma differed on how to deal with the petitions.
- Constitution Bench
- A bench of at least five judges that decides substantial questions of law about the interpretation of the Constitution under Article 145(3).
- Recall application
- A request asking the Court to withdraw its own earlier order. It is separate from a review petition or a curative petition.
Key Issues
- Constitutional Text: Article 324(2) says the President appoints the Chief Election Commissioner and Election Commissioners, subject to any law made by Parliament. The text leaves the method of selection to Parliament.
- Independence of the Commission: Article 324(5) protects the Chief Election Commissioner from removal except like a Supreme Court judge. Justice Datta said the Election Commission must be independent and be seen to be independent.
- Composition Dispute: The 2023 Act replaced the Chief Justice of India with a Union Cabinet Minister on the three-member panel. Justice Datta held that this leaves the panel without an independent check, and that the Chief Justice's role becomes largely ornamental.
- Judicial Precedent: The Anoop Baranwal judgment (2 March 2023) ordered a panel of the Prime Minister, the Leader of Opposition and the Chief Justice, until Parliament made a law. The Centre argued that this was only an interim arrangement.
- Bench Process: The 7 October application raises an apprehension of bias against one judge. Sankaranarayanan argued that a curative petition must be preceded by a review petition, so the route itself is in question.
Key Implications
Positive/Pros/Merits
- Settled Law: Justice Sharma held under Article 145(3) that the petitions raise substantial questions of law, and both judges asked the Chief Justice to constitute a five-judge bench.
- Parliament's Role: Article 324(2) itself says appointments are subject to any law made by Parliament, so the Act rests on a clear constitutional space.
- Transparency of Judges: A disclosure issue was raised through a formal application, which keeps the rule that a judge must disclose a possible conflict of interest in the public record.
Negative/Cons/Demerits
- Delay: The Act was passed in December 2023, the Court refused a stay on 21 March 2024, and the merits are still undecided, so a new application adds another step before a Constitution Bench can hear them.
- Panel Imbalance: Under the Act the Prime Minister and a Cabinet Minister form a majority over the Leader of the Opposition, which is the concern Justice Datta recorded.
- Institutional Trust: An application about a judge's possible conflict can affect public confidence in the process, even before the Court decides whether the allegation has substance.
- Procedural Doubt: Counsel said a curative petition must be preceded by a review petition, so it is unclear which route is correct for challenging the 23 September order.
Key Initiatives
- Article 324(2) and (5): The Constitution says the President appoints the Chief Election Commissioner and Election Commissioners, subject to a law of Parliament, and protects the Chief Election Commissioner from removal except like a Supreme Court judge.
- Anoop Baranwal Judgment: On 2 March 2023, a five-judge bench led by Justice K.M. Joseph ordered that a panel of the Prime Minister, the Leader of Opposition and the Chief Justice select the Commissioners until Parliament enacts a law.
- The 2023 Act: Parliament enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act in December 2023, replacing the Chief Justice with a Union Cabinet Minister on the selection panel.
- Supreme Court on the Act: The Court refused to stay the Act on 21 March 2024, and on 23 September 2026 the two-judge bench asked the Chief Justice to constitute a five-judge Constitution Bench.
The Government's stated position, argued by the Attorney General and the Solicitor General, is that the petitions concern the interpretation of Article 324 and Parliament's power to set the appointment method, and that the Anoop Baranwal arrangement was interim. The matter now awaits the Chief Justice's decision on the recall application and the constitution of a five-judge bench.
Director's Perspective
Way Forward
- Constitute the five-judge Constitution Bench quickly, so that the question of how Election Commissioners are selected is decided on merits and not left pending.
- Decide the recall application through a reasoned order that states whether the disclosure issue affects the 23 September order.
- Adopt a published disclosure rule for judges, stating what family links with litigants or institutions must be disclosed before a hearing.
- Have Parliament consider whether a selection panel that includes an independent member can be written into the Act, whatever the Court decides.
The dispute is about who picks the umpire, and the Court must settle it on the merits. Article 324(2) leaves the method to Parliament, while Justice Datta's concern about an ornamental role for the Chief Justice shows why the question needs a five-judge bench. In a Mains answer, credit Parliament's constitutional space and the Court's caution, then conclude that confidence in elections requires a selection process that is independent and is seen to be independent.
GS Relevance
Frequently Asked Questions
What did the Supreme Court split verdict of 23 September 2026 decide?
The two-judge bench of Justice Dipankar Datta and Justice Satish Chandra Sharma split on the 2023 Act on appointing Election Commissioners. Justice Sharma said the petitions need a Constitution Bench under Article 145(3), and both judges asked the Chief Justice to constitute one.
Who appoints the Chief Election Commissioner under the Constitution?
Under Article 324(2), the President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament. The 2023 Act provides that a selection committee of the Prime Minister, a Union Cabinet Minister and the Leader of Opposition recommends the names.
What did the Anoop Baranwal judgment of 2023 say?
On 2 March 2023, a five-judge bench led by Justice K.M. Joseph ordered that the Prime Minister, the Leader of Opposition and the Chief Justice of India select the Chief Election Commissioner and Election Commissioners. The order was to apply until Parliament made a law.
PYQ Practice — Statement Analysis
1 Article 324(2) says the Chief Election Commissioner is appointed by the President, subject to any law made by Parliament.
The Chief Election Commissioner can be removed only in the manner and on the grounds applicable to a Supreme Court judge.
2 The Anoop Baranwal judgment of 2023 required the Chief Justice of India to sit on the selection panel for ever, even after Parliament made a law.
The Court said the panel would apply until Parliament enacted a law. Parliament then passed the 2023 Act.
3 A Constitution Bench of at least five judges decides substantial questions of law on the interpretation of the Constitution under Article 145(3).
Justice Sharma held that the petitions on the 2023 Act raised such questions.