In a significant observation concerning the functioning of the Supreme Court, Justice Dipankar Datta and Justice Satish Chandra Sharma have urged the Chief Justice of India to explore the possibility of constituting a permanent five-Judge Constitution Bench to deal with pure questions of constitutional law.

The observation came while disposing of the issue concerning the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The two-Judge Bench differed on whether the matter should be referred to a Constitution Bench. Instead of sending the matter to another three-Judge Bench merely to resolve their difference, the Judges directed that the papers be placed before the CJI to consider constituting an appropriate Constitution Bench.

Court Flags Long Delays In Constitutional References

Before concluding the matter, the Bench addressed concerns regarding the inordinate time taken by Constitution Bench references to reach final adjudication.

The Judges referred to the Anoop Baranwal v. Union of India case, noting that the writ petition was filed in 2015, while the reference to a Constitution Bench was made in 2018. The Constitution Bench ultimately took another five years to deliver its decision, meaning that approximately eight years passed from the filing of the petition to its disposal.

The Bench also referred to State of Uttar Pradesh v. Jai Bir Singh, reported as 2026 INSC 897, noting that the reference made by a seven-Judge Bench took nine years to reach the nine-Judge Bench, followed by another five months for the Bench to decide the matter. The reference had remained pending for 15 years since 2002 before that stage.

"Area Of Grave Concern"

The Judges observed that references to five-Judge Benches can remain unresolved for years, making it difficult to predict when long-pending constitutional questions will ultimately be decided.

The Bench described the inordinate delay in resolution of constitutional references as an "area of grave concern" and observed that such delays can become a source of institutional embarrassment. The Judges emphasised that institutional self-introspection was required.

Suggestion For Permanent 5-Judge Bench

The Court therefore took the opportunity to request the Chief Justice of India to explore the necessity of establishing a permanent five-Judge Bench for deciding pure constitutional issues.

The Judges noted that the suggestion was not novel and had been expressed previously by responsible citizens. They observed that since resolving constitutional questions is a primary function of the Supreme Court, it should remain a core priority.

The Bench further observed that pendency of constitutional references for periods ranging from five to twenty years or even longer does not reflect well on the institution and said that the issue requires to be addressed with urgency and promptitude.

The Judges concluded by expressing the hope that the present constitutional reference concerning the Election Commissioners' appointment law would not suffer the kind of prolonged delay witnessed in earlier cases.

Case: Dr. Jaya Thakur & Ors. v. Union of India & Anr. & Connected Matters
Citation: 2026 INSC 1040
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma.

Representation:-

Petitioner(s) :Mr. Prashant Bhushan, AOR Ms. Alice Raj, Adv. Ms. Cheryl D'Souza, Adv. Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Gaurav Kumar, Adv. Mr. Vishal Sinha, Adv. Mr. Pawan Reley, AOR Mr. Akshay Lodhi, Adv. Mr. Naman Sherstra, Adv. Mr. Sanjiv Mishara, Adv. Mr. Adit Jayeshbhai Shah, Adv. Mr. Mukesh Kumar Thalour, Adv. Ms. Simran Singh, Adv. Mr. Tanish Rawat, Adv. Mr. Vijay Hansariya, Sr. Adv. Mr. Varun Thakur, Adv. Mr. Ramkaran, Adv. Mr. Deepak Goel, Adv. Mr. Tanuj Bagga Sharma, Adv. Dr. M K Ravi, Adv. Mrs. Shraddha Saran, Adv. Mr. S P Singh, Adv. Ms. Kavya Jhawar, Adv. Ms. Nandini Rai, Adv. Mr. Aashay Shukla, Adv. M/S. Varun Thakur & Associates, AOR Mr. Pradeep Kumar Yadav, Adv. Ms. Anjale Kumari, Adv. Mr. Vishal Thakre, Adv. Mr. Taiyyab Khan Salmani, Adv. Ms. Purva Kumari, Adv. Mr. Tota Ram, Adv. Ms. Prakriti Pandey, Adv. Ms. Khushboo, Adv. Mr. Sanjeev Malhotra, AOR Petitioner-in-person Mr. Sanjay Parikh, Sr. Adv. Ms. Maulshree Pathak, AOR

For Respondent(s) :Mr. R Venkataramani, Attorney General for India Mr. Tushar Mehta, Solicitor General Mr. Raghvendra P Shankar, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Aaditya Dixit, Adv. Mr. Gaurang Bhushan, Adv. Mr. Kanu Agrawal, Adv. Mr. Devashish Bharukha, Adv. Mrs. Sansriti Pathak, Adv. Mr. Kartikay Agarwal, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Chitvan Singhal, Adv Mrs. Ameyavikrama Thanvi, Adv. Mr. Aman Mehta, Adv. Dr. N. Visakamurthy, AOR Mr. Prateek Kumar, AOR Mr. Devansh Rai, Adv. Mr. R. P. Gupta, AOR Mr. Prashant Padmanabhan, AOR Mr. Kaleeswaram Raj, Adv. Mrs. Thulasi K Raj, Adv. Ms. Chinnu Maria Antony, Adv. Ms. Athira Nandakumar, Adv. Ms. Smita Amratlal Vora, AOR Mr. Mohammed Sadique T.A., AOR Mr. Pradeep Kumar Rai, Sr. Adv. Ms. Farhat Naim, Adv. Ms. Modoyia Kayina, Adv. Mr. Vinay Kumar Rai, Adv. Mrs. Rajshree Rai, Adv. Mr. Devi Prasad Semwal, Adv. Mr. Sumit Gehlot, Adv. Mr. Anil Agarwal, Adv. Mr. Mohnish Nirwan, Adv. Mr. Ashok Kumar, Adv. Ms. Kajri Gupta, Adv. Mr. Shreyansh Singh, Adv. Mr. Jitendra Singh Tanwar, Adv. M/S R And R Law Associates, AOR Mr. Shadan Farasat, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. Harshit Anand, Adv. Mr. Kaustubh Chaturvedi, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Faizan Ahmed, Adv. Mr. Sudipto Sircar, AOR Mr. Preet Oberoi, Adv. Mr. Abhishek Sharma, Adv. Mr. Nalin Talwar, Adv. Ms. Mahima Pandey, Adv.