The Supreme Court on Wednesday urged Chief Justice of India Surya Kant to consider constituting a permanent five-Judge Constitution Bench to decide pure constitutional questions, flagging the years-long delay in references to larger benches.

The Court observed that the inordinate delay in resolving references was a source of institutional embarrassment which all stakeholders should strive to avoid.

“If statistics are any guide, none can say with any reasonable degree of certainty when long pending references will get resolved. Undisputedly, this is an area of grave concern and the inordinate delay in resolution of the references is itself a source of institutional embarrassment which all stakeholders ought to strive to avoid. Self-introspection, indeed, is required,” it observed.

A bench of Justice Dipankar Datta and Justice Satish Chandra Sharma made the request while directing that the pleas challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 be placed before the CJI for considering the constitution of a Constitution Bench.

The bench was divided on whether the challenge itself warranted a reference to a larger Bench. Justice Datta held that the existing division bench could decide the challenge, while Justice Sharma held that the case involved a substantial question of constitutional interpretation requiring consideration by a Constitution Bench.

The judges, however, agreed that sending the issue of their difference of opinion to another three-judge bench would only delay the adjudication.

Thay addressed the concern raised by the petitioners regarding the time taken by the Supreme Court to decide references to Constitution Benches.

The Court noted that Anoop Baranwal v. Union of India originated from a writ petition under Article 32 filed in 2015. A reference to a Constitution Bench was made three years later, in 2018, and it took another five years for the Constitution Bench to deliver its judgment in 2023 – eight years in total.

The Court also referred to State of Uttar Pradesh v. Jai Bir Singh. Both Justice Datta and Justice Sharma had been part of the nine-judge bench in that matter. Thay noted that the reference made by a seven-judge bench took nine years to reach the nine-judge bench, following which the bench took another five months to decide it. The reference had remained pending since 2002, for 15 years, before being placed before the larger bench, they noted.

Against this background, the Court observed that the petitioners appeared justified in expressing anxiety over references to five-judge benches remaining unresolved for years.

Therefore, the judges requested the CJI to consider constituting a permanent 5-judge Constitution bench.

They noted that such a proposal was not novel and that it was merely endorsing an opinion expressed by responsible citizens of the country.

“We, thus, take this opportunity of requesting the Hon'ble the Chief Justice of India to also explore the necessity of constituting a permanent 5-Judge Bench to decide pure constitutional issues. This is not something novel that we are saying. It has been opined time and again by responsible citizens of the country and we simply endorse their opinion. Given that resolving constitutional issues is the primary task of Judges of this Court, that must remain its core priority. Pendency of references for far too long [any period between 5 (five) and 20 (twenty) years or more] does not reflect well on the institution. It is time that the institution addresses the issue with the urgency and promptitude it deserves,” the bench observed.

The bench also expressed hope that the reference concerning the constitutional validity of the 2023 law would not face a similar delay, given that the issues requiring consideration are of foundational importance to the democratic fabric of the country and its citizenry.

The order was passed in the batch of petitions challenging the 2023 Act, which replaced the interim appointment mechanism laid down by the Supreme Court in Anoop Baranwal. The petitions challenge, among other provisions, Section 7 of the 2023 Act, under which the selection committee comprises the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

Headnote

Constitution of India — Article 145(3) read with Supreme Court Rules, 2013, Order XXXVIII Rule 1 — Split Verdict on Reference to Constitution Bench - In a batch of writ petitions challenging the constitutional validity of Sections 6, 7, and 8(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 for excluding the Chief Justice of India and institutionalizing executive dominance in the Selection Committee, the two-Judge Bench delivered a split opinion on whether the challenge must be referred to a Constitution Bench under Article 145(3) – Per Dipankar Datta, J. (Rejecting the plea for reference) - Merely raising a constitutional question or challenging a novel enactment does not attract Article 145(3), if the foundational constitutional principles have already been authoritatively settled by Supreme Court - The Constitution Bench in Anoop Baranwal v. Union of India, (2023) 6 SCC 161, definitively held that the Election Commission of India must be insulated from exclusive executive control and that free and fair elections form part of the basic structure - What remains is only the application of these settled standards to the newly enacted 2023 Act - Applying settled law does not amount to interpreting the Constitution under Article 145(3) - The interim committee in Anoop Baranwal was a transient pro tem measure under Article 142 until legislative intervention, and examining whether the 2023 Act passes the muster of Article 14 and Article 324 is within the domain of the regular Bench. [Paras 49-88].

Per Satish Chandra Sharma, J. (Allowing the plea for reference) - The 2023 Act was enacted by Parliament pursuant to Anoop Baranwal - There is no prior authoritative decision of the Supreme Court testing the constitutional validity of the 2023 Act - Whether Parliament was constitutionally justified under Article 324(2) in excluding an independent or neutral selector (such as the CJI) from the Selection Committee and retaining an executive majority raises a seminal and substantial question of law as to the interpretation of the Constitution which has never been decided before - Under Article 145(3) read with Order XXXVIII Rule 1 of the Supreme Court Rules, 2013, such a pristine question of constitutional interpretation must be decided by a Bench of not less than five Judges. [Relied on Anoop Baranwal v. Union of India, (2023) 6 SCC 161; People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399; Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595; Manoj Narula v. Union of India, (2014) 9 SCC 1; Supreme Court Advocates-on Record Association v. Union of India (NJAC Case), (2016) 5 SCC 1; Paras 5-20].

Judicial Process — Inordinate Delay in References to Larger Benches — Suggestion for Permanent Constitution Bench - Noting the grave delay in deciding references (often taking between 5 to 20 years or more, as witnessed in Anoop Baranwal and Jai Bir Singh), which causes institutional embarrassment, the Bench collectively placed the papers before the Chief Justice of India for the constitution of an appropriate Bench to resolve the vires of the 2023 Act, and urged the CJI to explore the necessity of setting up a permanent 5-Judge Constitution Bench to decide pure constitutional controversies expeditiously.

Case no. - W.P.(C) No. 14/2024 Diary No. 146 / 2024 and connected cases

Case Title - Dr. Jaya Thakur v. Union of India and connected cases

Citation: 2026 LiveLaw (SC) 976