The Supreme Court didn’t mince words on Wednesday. Justices Dipankar Datta and Satish Chandra Sharma labeled the inordinate delay in resolving larger bench references a "source of institutional embarrassment." They urged self-introspection, noting that pendency stretching from five to 20 years does not reflect well on the institution.
The bench made these observations while hearing pleas challenging the 2023 law that excludes the Chief Justice of India from the panel selecting the Chief Election Commissioner. The judges split on whether these constitutional issues should go to a larger bench. Justice Datta refused to accept the Centre’s submission that the petitions require a five-judge constitution bench. Justice Sharma disagreed. The matter is now placed before the CJI to consider the desirability of such a bench.
The delay isn’t hypothetical. The bench cited a recent nine-judge verdict on the definition of "industry" under the Industrial Disputes Act, 1947. That reference took nine years to travel from a seven-judge bench to a nine-judge bench, plus five months for the decision. Before that, it sat pending for 15 years since 2002. Another example: the March 2, 2023, five-judge verdict on CEC appointments arose from a 2015 petition, with the reference made in 2018 and decided five years later.
"Given that resolving constitutional issues is the primary task of judges of this court, that must remain its core priority," the judgment stated. The bench noted that if statistics are any guide, no one can say with certainty when long-pending references will get resolved. They endorsed the opinion of responsible citizens that the institution needs a structural fix, specifically a permanent five-judge bench for pure constitutional issues.
The next step lies with the Chief Justice of India. The bench earnestly hopes the current reference regarding the 2023 CEC selection law will not suffer the same inordinate delay. The CJI must now decide whether to constitute a permanent constitutional bench or handle the 2023 law challenge through existing mechanisms. The clock is already ticking on that decision.