CJI urged to consider permanent Constitution bench

Flagging the inordinate delay in resolution of references made to larger Benches, the Supreme Court on Wednesday termed it a “source of institutional embarrassment” and requested the Chief Justice of India to explore the necessity of setting up a permanent five-judge Constitution bench. A Bench of Justices Dipankar Datta and Satish Chandra Sharma termed the delay as an area of “grave concern” and said self-introspection was required, as pendency of reference for far too long does not reflect well on the institution.

The observations were made after both the judges gave split opinions on whether a batch of pleas challenging the validity of a 2023 law that excludes the CJI from the panel for selecting the Chief Election Commissioner and Election Commissioners should be referred to a larger Bench.

The bench said 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 said.

“We, thus, take this opportunity of requesting the Chief Justice of India to also explore the necessity of constituting a permanent five-judge Bench to decide pure constitutional issues,” the Bench said.

It said this is not something novel that the bench is saying. “It has been opined time and again by responsible citizens of the country and we simply endorse their opinion,” it said.

The bench said, “Given that resolving constitutional issues is the primary task of judges of this court, that must remain its core priority.” It said pendency of references for far too long, any period between five and 20 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,” it said.

The bench said it need to notice a concern expressed by the petitioners not on the merits but on the time taken by the top court to decide references. Both the judges said they were part of a nine-judge constitution bench, which had recently delivered its verdict on the contentious issue of defining the term “industry” under the Industrial Disputes Act, 1947.

“It took nine years for the reference made by the seven-judge Bench to travel to the nine-judge bench and five months more for the Bench to decide,” the Bench said.

It said prior to that, the reference in the matter remained pending for 15 years since 2002.

“The petitioners seem to be justified in expressing their anxiety that references to five-judge Benches remain unresolved for years together,” it said.

The Bench also referred to a March 2, 2023 verdict delivered by a five-judge Constitution Bench.

In that landmark verdict aimed at insulating the appointment of the CEC and ECs from the executive’s interference, the five-judge Bench had ruled that their appointments will be made by the president on the advice of a committee comprising the prime minister, the Leader of the Opposition in Lok Sabha and the CJI.

On Wednesday, the Bench said the decision in that case arose out of a writ petition filed in 2015.

It said in that matter, reference to a Constitution Bench was made in 2018 and it took another five years for the Bench to give its decision and dispose of the petition. While dealing with the pleas challenging the validity of the 2023 law that excludes the CJI from the panel for selecting the CEC and ECs, Justice Datta refused to accept the Centre’s submission that the petitions raise questions of constitutional importance and should be referred to a five-judge Constitution Bench. Justice Sharma, however, disagreed with the views of Justice Datta.

The Bench said the matter be placed before the CJI for considering the desirability of constituting a Constitution Bench to decide the matter.

“The issues that would engage the consideration of the five-judge Bench being of foundational importance to the democratic fabric of the country and its citizenry, we earnestly hope and trust that this reference would not suffer the inordinate delay in its resolution as in other cases,” the Bench said.

The bench was hearing pleas challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the CJI from the selection panel for appointing election commissioners and chief election commissioners.