DR. JAYA THAKUR AND ORS. v. UNION OF INDIA AND ANR.

W.P. (C) No. 14 of 2024 & Ors. Page 8 of 12

13. The next contention was that reference to a Constitution Bench must not be made merely because legislation is novel or constitutional in character, because, if every challenge to a new statute enacted under a constitutional provision were referred under Article 145(3) of the Constitution, the constitutional threshold would become meaningless. In this regard, it was also contended that a reference does not depend on novelty and it is the substance of the statute that matters.

14. My view on this contention is this. Old or new, whatever be the character of the statute, if validity of such statute or a part thereof is questioned on valid grounds as failing the constitutional test and if this Court has previously not had the occasion to deal with and pronounce on such grounds, a reference would seem to be in order. This contention of the petitioners militates against the mandatory provisions of Article 145(3) of the Constitution read with Order 38 of the Supreme Court Rules and, hence, has failed to impress me.

15. Further contention, raised with substantial force by placing heavy reliance on Madras Bar Association (supra), is the belated plea for reference under Article 145(3) of the Constitution though such plea was neither raised in the counter-affidavit nor at the inception of hearing particularly during all these two years when the petitions have remained pending. A belated approach may not be welcome but one cannot be oblivious of the several

W.P. (C) No. 14 of 2024 & Ors. Page 9 of 12

previous decisions of this Court on the same subject of reform of tribunal laws, culminating in the challenge raised to the current tribunal reform laws in Madras Bar Association (supra). It is in such type of cases, where nothing further remains to be decided on merits except reviewing the purported disobedience of this Court’s earlier decisions by those entrusted with implementation, that a Constitution Bench need not be convened over again on the same issue.

16. Attention was drawn to several decisions where this Court decided constitutional challenges sitting in a combination of 2/3 Judges and it was contended that the mere fact of constitutional validity being in issue did not appeal to the relevant Benches to make a reference to a Constitution Bench. I would answer this contention by reverting to the contents of paragraphs 12 and 14 above, for the sake of brevity.

17. Contention raised that the said Act effectively seeks to legislatively overrule Anoop Baranwal (supra), which is impermissible, is again unmeritorious because of the nature of exercise performed by the Constitution Bench. Had it not been an interim arrangement, the consequence could have been otherwise.

18. Further, reliance placed on Rao Shiva Bahadur Singh (supra) is wholly misplaced. Paragraphs 16 and 17 of the said

W.P. (C) No. 14 of 2024 & Ors. Page 10 of 12

decision suggest that even though a reference before a 5-Judge Constitution Bench may be decided by answering the constitutional question, the subsidiary questions may be left for decision by a Bench of lesser strength. The declaration as made does not fit in the fact situation here, since the primary contention of the petitioners to the validity of Sections 7, 6 and 8 of the said Act does raise a substantial question of law as to interpretation of the Constitution, which has not been decided before, and hence should and must be decided by a Constitution Bench now.

19. The submission that reference to a Constitution Bench would permit the respondents to launch a challenge to the decision in Anoop Baranwal (supra) and reopen issues settled by it, short-circuiting the reference procedure and, thus, misusing the provisions of Article 145(3) of the Constitution, proceeds on a misapprehension. Fair and free elections being a part of the basic structure has been acknowledged in the precedents relied on and no Court can or would, possibly, doubt it now. But whether the said Act fails the test of free and fair elections has to be independently examined.

20. Having regard to the aforesaid discussion, in my opinion, all the petitions in accordance with Article 145(3) of the Constitution and Order 38 of the Supreme Court Rules may now be placed before the Hon’ble Chief Justice of India for an appropriate order of constitution of a Constitution Bench to

W.P. (C) No. 14 of 2024 & Ors. Page 11 of 12

adjudicate the constitutional validity of Sections 7, 6 and 8 of the said Act.

….…………………………………J. [SATISH CHANDRA SHARMA]

NEW DELHI September 23, 2026.

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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 14 OF 2024

DR. JAYA THAKUR AND ORS. … PETITIONERS

VERSUS

UNION OF INDIA AND ANR. … RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 13 OF 2024

GOPAL SINGH … PETITIONER

VERSUS

UNION OF INDIA AND ANR. … RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 11 OF 2024

NAMAN SHERSTRA AND ANR. … PETITIONERS

VERSUS

UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION (CIVIL) NO. 87 OF 2024

ASSOCIATION FOR DEMOCRATIC REFORMS … PETITIONER VERSUS

UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION (CIVIL) NO. 191 OF 2024

PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANR. … PETITIONERS

VERSUS

UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION (CIVIL) NO. 272 OF 2024

LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA … PETITIONER

VERSUS

UNION OF INDIA AND ORS. … RESPONDENTS

ORDER

DIPANKAR DATTA AND SATISH CHANDRA SHARMA, JJ.

1. The present cluster of writ petitions and the interlocutory applications

filed therein for intervention were heard extensively for 5 (five) days by us.

Speaking in one voice would have better served institutional cohesion.

Unfortunately, the Court is divided in its opinion.

2. In view of the difference of opinion between the two of us, ideally, a

reference to a 3-Judge Bench is called for. However, having regard to the

question on which such difference has arisen, i.e., whether the petitions

and the applications should be heard by a Constitution Bench of 5 (five)

Judges, a decision by a 3-Judge Bench to resolve which of the two opinions

is correct would be of little worth and only delay adjudication of the

significant issue(s) that these writ petitions raise.

3. Thus, we direct that the papers be placed before the Hon’ble the Chief

Justice for considering the desirability of constituting a Constitution Bench

of such number of Judges to decide the question of vires of Section 7 and

the other provisions of the Chief Election Commissioner and other Election

Commissioners (Appointment, Conditions of Service and Term of Office)

Act, 2023.

4. Before parting, we need to notice a concern expressed by the

petitioners not on the merits but on the time taken by this Court to decide

references. The decision in Anoop Baranwal v. Union of India reported

in (2023) 6 SCC 161 arose out of, inter alia, a writ petition under Article 32

presented in 2015. Reference to a Constitution Bench was made by a Bench

years, in all 8 (eight) years, for the Bench to give its decision and dispose

of the writ petition. Both of us were part of the 9-Judge Bench in State of

Uttar Pradesh v. Jai Bir Singh reported in 2026 INSC 897. It took 9

(nine) years for the reference made by the 7-Judge Bench to travel to the

9-Judge Bench and 5 (five) months more for the Bench to decide. Prior

thereto, the reference remained pending for 15 (fifteen) years, since 2002.

The petitioners seem to be justified in expressing their anxiety that

references to 5-Judge Benches remain unresolved for years together. 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.

5. We, thus, take this opportunity of requesting the Hon’ble the Chief

Justice of India to also explore the necessity of constituting a permanent

5-Judge Bench to decide pure constitutional issues. 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. Given that

resolving constitutional issues is the primary task of Judges of this Court,

that must remain its core priority. Pendency of references for far too long

reflect well on the institution. It is time that the institution addresses the

issue with the urgency and promptitude it deserves.

6. The issues that would engage the consideration of the 5-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.

………..……………………………J. (DIPANKAR DATTA)

…………………..…………………J. (SATISH CHANDRA SHARMA) NEW DELHI; SEPTEMBER 23, 2026.