Inordinate Delay In Deciding References Is Source Of Institutional Embarrassment: Supreme Court Requests CJI To Consider Constituting Permanent 5-Judge Bench

The Bench of the Supreme Court, while delivering a split verdict in the matter concerning the reference in the challenge to the Chief Election Commissioner Act, 2023, has requested the Chief Justice of India to consider constituting a permanent 5-Judge Bench to decide pure constitutional issues.

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.

Justice Dipankar Datta has also opined that it has become "fashionable nowadays" to blame the Collegium for every infelicitous choice.

The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma observed, "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."

Senior Advocates Gopal Sankaranarayanan, Shadan Farasat and Advocate Prashant Bhushan appeared for the Petitioners, while Attorney General R Venkataramani and Solicitor General Tushar Mehta appeared for the Respondents.

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 observed that the issues that would engage the consideration of the 5-Judge Bench, being of foundational importance to the democratic fabric of the country and its citizenry, will not suffer the inordinate delay in their resolution. 

It was opined, "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."

The Court highlighted the concern that the decision in Anoop Baranwal v. Union of India arose out of, inter alia, a writ petition under Article 32 presented in 2015. Reference to a Constitution Bench was made by a Bench of two-Judges three years later, i.e., in 2018.

It was added that it took another five years, in all eight years, for the Bench to give its decision and dispose of the writ petition. It took nine years for the reference made by the 7-Judge Bench to travel to the 9-Judge Bench and 5 (five) months more for the Bench to decide.

Accordingly, in view of the difference of opinion between the two, the Bench directed that the papers be placed before the Chief Justice for considering the desirability of constituting a Constitution Bench of such number of Judges to decide the question of vires of Section 7 and the other provisions of the Act, 2023. 

Cause Title: Dr Jaya Thakur Vs Union Of India and other connected matters [Neutral Citation: 2026 INSC 1040]

Appearances:

Petitioners: Senior Advocate Gopal Sankaranarayanan, Senior Advocate Vijay Hansariya, Senior Advocate Sanjay Parikh, Advocate on Record Prashant Bhushan, Advocate on Record Pawan Reley, Advocate on Record M/S. Varun Thakur & Associates, Advocate on Record Sanjeev Malhotra, Advocate on Record Maulshree Pathak and others

Respondents: Attorney General for India R. Venkataramani, Solicitor General Tushar Mehta, Additional Solicitor General Raghvendra P. Shankar, Senior Advocate Pradeep Kumar Rai, Senior Advocate Shadan Farasat, Advocate on Record Gurmeet Singh Makker, Advocate on Record Dr. N. Visakamurthy, Advocate on Record Prateek Kumar, Advocate on Record R. P. Gupta, Advocate on Record Prashant Padmanabhan, Advocate on Record Smita Amratlal Vora, Advocate on Record Mohammed Sadique T.A., Advocate on Record M/S R And R Law Associates, Advocate on Record Talha Abdul Rahman, Advocate on Record Sudipto Sircar and others

Click here to read/download the Order