SC requests CJI to explore possibility of permanent 5-judge bench for cases involving constitutional issues

New Delhi: Flagging the "inordinate delay" in resolution of references made to larger benches, the Supreme Court on Wednesday requested the Chief Justice of India to explore the possibility of constituting a permanent five-judge bench to deal with cases involving constitutional issues.

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.

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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.

"Self-introspection indeed is required. We, thus, take this opportunity to request the CJI to also explore the possibility of constituting a permanent five-judge bench to decide pure constitutional issues," it said.

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"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," the bench said.

It observed that resolving constitutional issues is the primary task of judges of the apex court and that must remain a priority.

"Pendency of reference 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," the bench said.

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.

The bench said it took several years for the reference made by a seven-judge bench to travel to the nine-judge bench in that matter.

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 on the administrative side for constitution of a bench of appropriate strength for an effective and authoritative adjudication.

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.

On March 2, 2023, in a landmark verdict aimed at insulating the appointment of the CEC and ECs from the executive's interference, a five-judge Constitution bench 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.