The Supreme Court has agreed to examine to list an application seeking the recall of its recent split verdict regarding the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

On September 2026, the Supreme Court had delivered a split verdict in the matter concerning the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

While Justice Dipankar Datta held that the challenge could be decided by applying settled constitutional principles without referring the matter to a larger bench, Justice Satish Chandra Sharma favoured referring the substantial constitutional questions to a five-judge bench.

The Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V Mohana said, "We'll examine and then we'll take a call on what to do."


Senior Advocate Gopal Sankarnarayan appeared for the Applicant

He submitted, "It is an application for recall in a split decision of this Court with reference to whether a matter should be referred to a larger bench about the Chief Election Commissioner and the Election Commissioners' appointment. We have filed an application for recall of that order. I had mentioned it before Justice Datta's bench on Friday, and we were told to mention it before you because they have released it to your Lordships on the administrative side."

He also informed that somebody has filed a curative petition in one of the connected matters.

Despite their difference of opinion, both judges issued a concurring procedural order directing the case papers to be placed before the Chief Justice of India to consider constituting a Constitution Bench directly, avoiding the procedural delay of a three-judge bench, while also highlighting the urgent institutional need to address long-pending references.

The Court heard the matter challenging the validity of the appointment of new Election Commissioners under the new law, which excludes the Chief Justice of India from the selection panel.

While delivering his opinion on the matter, Justice Dipankar Datta had opined that it has become "fashionable nowadays" to blame the Collegium for every infelicitous choice. Justice Datta highlighted that the Collegium's role is merely recommendatory and that the executive holds final decisive control—frequently overriding recommendations, delaying reiterated names, and forcing the judiciary into a Hobson's choice to keep the institution running.

The Bench had also requested the Chief Justice of India to consider constituting a permanent 5-Judge Bench to decide pure constitutional issues. 

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