Supreme Court Judges Request CJI to Constitute Permanent Constitution Bench for Constitutional References

A two-Judge Bench of the Supreme Court of India has delivered a split verdict on whether writ petitions challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 raise a substantial question of law requiring reference to a Constitution Bench. Despite disagreeing on the substantive issue, both judges issued a concurring procedural order requesting the Chief Justice of India to consider constituting a permanent 5-Judge Constitution Bench to decide pure constitutional issues. The order was issued in the case of Dr Jaya Thakur v. Union of India and other connected matters.

The dual request reflects an urgent institutional concern that has plagued the court for years: the inordinate delay in resolving constitutional references. Both judges, while differing on whether the 2023 Act raises a fresh constitutional question, found common ground in their call for structural reform. Their order directs that case papers be placed before the Chief Justice of India to consider constituting a Constitution Bench directly, thereby avoiding the procedural delay that occurs when a three-judge bench must first examine whether a reference is warranted before escalating the matter.

Years of Accumulated Delays

The Bench highlighted the gravity of pending constitutional references by pointing to concrete examples of how long such cases take to resolve. One reference arose from a writ petition filed under Article 32 in 2015. Three years later, in 2018, a two-Judge Bench referred the matter to a Constitution Bench. The decision then took another five years to arrive, meaning eight years elapsed from the original petition to final disposal. This case, Anoop Baranwal v. Union of India, exemplified the systemic problem.

The court also noted that another reference took nine years to travel from a 7-Judge Bench to a 9-Judge Bench, with an additional five months required for the larger bench to decide the matter. The cumulative effect of these delays prompted the judges to state plainly: "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 parties involved ought to strive to avoid. Self-introspection, indeed, is required."

The language reflected not merely procedural frustration but institutional concern. The Bench recognised that such delays undermine public confidence in the court's ability to resolve constitutional questions that often carry consequences for governance and citizens' rights.

The Substantive Dispute: Does the 2023 Act Require Fresh Constitutional Analysis?

The petitioners argued that the Chief Election Commissioner Act, 2023 merely applied an already-settled constitutional principle and did not raise a fresh question of constitutional interpretation requiring a Constitution Bench reference. They relied heavily on the Constitution Bench decision in Anoop Baranwal v. Union of India, which held that the Election Commission of India must be insulated from exclusive executive control in matters of appointment. Following that judgment, the court had directed that a Committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India make such appointments pending parliamentary legislation.

The petitioners contended that the 2023 Act, enacted after that judgment, simply gave legislative effect to the constitutional principle already articulated by the Constitution Bench. On this reasoning, they argued no fresh question of constitutional interpretation arose warranting a reference to a larger bench.

The two-Judge Bench disagreed on this point. The split verdict indicates that one judge found the matter raised a substantial question of law as to the interpretation of the Constitution under Article 145(3), while the other did not. Rather than allow the disagreement to result in the matter being set aside or remitted to a larger bench through the conventional three-judge route, both judges agreed that the papers should go directly to the Chief Justice for consideration of constituting a Constitution Bench.

Institutional Governance and Election Commission Independence

Justice Dipankar Datta, one of the judges on the Bench, offered additional observations on institutional governance. He noted that it has become "fashionable nowadays" to blame the Collegium for every infelicitous choice in judicial appointments. His remarks appeared to reflect concern about the tenor of public discourse regarding judicial appointments and the need for measured institutional self-assessment rather than reflexive criticism.

More pointedly, Justice Datta raised questions about the independence of the selection process for Election Commissioners under the 2023 Act. He observed that if the Prime Minister's nominee is expected to sit on the selection committee, questions arise about whether such a person can be expected to defy the Prime Minister in the selection process. This concern went to the heart of the constitutional principle in Anoop Baranwal—that the Election Commission must be insulated from executive control.

These observations, while made in the context of a split verdict, indicate the constitutional sensitivity of the questions at stake. The case touches on the separation of powers, the independence of constitutional institutions, and the proper balance between executive authority and institutional autonomy in a democratic system.

Direct Reference to Constitution Bench

By directing the papers to be placed before the Chief Justice of India for consideration of constituting a Constitution Bench directly, the two-Judge Bench sought to bypass the procedural step that typically occurs when judges disagree on whether a reference is warranted. Normally, when a two-judge bench splits on whether a constitutional question requires a larger bench, the matter is referred to a three-judge bench for preliminary consideration. That bench then decides whether to constitute a Constitution Bench. This intermediate step has historically contributed to delays.

The current order, if acted upon by the Chief Justice, would allow the matter to proceed directly to a permanent 5-Judge Constitution Bench for final resolution. The Bench's suggestion of a "permanent" Constitution Bench indicates a structural proposal: rather than constituting ad hoc benches for individual references, the court might benefit from maintaining a standing bench dedicated to resolving constitutional questions. Such an arrangement could reduce procedural delays and ensure continuity in handling complex constitutional matters.

The order reflects a judicial acknowledgment that the current system, while procedurally sound in principle, has proven institutionally inefficient in practice. Constitutional questions often carry consequences for governance, elections, and citizens' rights. When such questions remain unresolved for eight, nine, or fourteen years, the delay itself becomes a constitutional problem.