The recent split verdict of the Supreme Court in Dr Jaya Thakur v. Union of India, challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, has reignited debate around several contentious issues ranging from judges appointing judges, the procedural fairness and propriety of a belated preliminary objection seeking a Constitution Bench, judicial propriety concerning another judge on the Bench and the role of the Chief Justice as Master of the Roster.
Yet, beneath these questions lies a more subtle institutional concern: whether judicial delay has begun to affect not merely the delivery of justice to litigants, but also the practical consequences of disagreement between Judges, where judicial freedom of expression can become practically inconsequential despite being expressed in strong and reasoned terms.
The legislative vacuum under Article 324(2), seeking an independent body for appointment of election commissioners, came to be filled years later, after Anoop Baranwal first filed a PIL in January 2015. The matter was first heard by a Division Bench comprising then Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul, who, after four years and nine months, on October 23, 2018, referred the matter to a Constitution Bench. While the reference remained pending, on September 1, 2020, Rajiv Kumar was appointed as Election Commissioner and subsequently became Chief Election Commissioner on May 15, 2022. The Constitution Bench commenced hearings on September 29, 2022 - almost four years after the reference was made - and finally reserved judgment on November 24, 2022.
During the pendency of the proceedings before the Supreme Court, Arun Goel was appointed as Election Commissioner on November 18, 2022, following the existing procedure involving executive dominance in the appointment. Finally, the Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar delivered judgment on March 2, 2023, directing that until the legislature enacts a law in that regard, the appointment of Chief Election Commissioner and Election Commissioners shall be made on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Goel’s case is an illustration of how institutional/judicial delay can keep independence in abeyance. His appointment sailed through judicial scrutiny solely due to delay in adjudication.
Soon after the passing of the aforesaid Constitution Bench decision, the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was introduced in the Rajya Sabha and the Bill was notified to become law on on February 1, 2024 after receiving the assent of the President on December 29, 2023. The new law restored executive dominance in such appointments.
With the passing of the new law, the executive overcame within a span of approximately 10 months the mandate of Anoop Baranwal, which took more than eight years for the judiciary to lay down. The immediate challenge to the new legislation was heard by a Division Bench comprising Justices Sanjiv Khanna and Dipankar Datta for the first time on January 12, 2024. Subsequently, the matter was taken up on March 15, 2024 by a Bench comprising Justices Khanna, Datta and AG Masih, but was adjourned.
In the meantime, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as Election Commissioners under the new law. On December 3, 2024, when the matter came up before a Bench of Chief Justice Khanna and Justice PV Sanjay Kumar, the former recused himself from the matter, resulting in further deferment of adjudication. On May 6, 2026, the matter was finally taken up for arguments by a Division Bench of Justices Datta and SC Sharma.
On September 23, 2026, while writing a detailed separate opinion on the desirability and necessity of referring the matter to a Constitution Bench, Justice Datta, after analysing the existing constitutional jurisprudence, categorically opined that the two-judge Bench was competent to hear and decide the challenge to the constitutional validity of the legislation. Justice Sharma, however, took a contrary view and held that the matter warranted consideration by a Constitution Bench. Justice Datta’s opinion, therefore, remained a clear and emphatic expression of judicial disagreement.
Ordinarily, a difference of opinion between two Judges would result in the matter being placed before a larger bench. Indeed, the joint order expressly records that, “ideally”, a reference to a three-judge bench was called for. Yet, the two Judges concluded that since the precise question requiring resolution was whether the matter itself should go before a five-judge Constitution Bench, a three-judge bench deciding which of the two opinions was correct would be “of little worth” and would “only delay adjudication” of the substantive constitutional issues. The papers were consequently directed to be placed before the Chief Justice for considering the formation of a Constitution Bench.
The Court referred to several instances where references to larger benches have remained pending for years. In Anoop Baranwal, an Article 32 petition was instituted in 2015, the matter was referred to a Constitution Bench in 2018 and it took another five years before the matter was finally decided in 2023. In State of Uttar Pradesh v. Jai Bir Singh, a reference made by a seven-judge bench took nine years to reach a nine-judge bench, apart from the time taken for adjudication. Even before that, the reference had remained pending for 15 years, dating back to 2002. The Court further acknowledged that references may remain unresolved for 5, 10, 15, 20 years or more, stating that “none can say with any reasonable degree of certainty” when they would ultimately be resolved, and described such inordinate delay as a “source of institutional embarrassment”, calling for institutional self-introspection.
The above observation of the Division Bench in dealing with the issue of constitutional references is not an isolated one when viewed with the number of Constitution Bench references pending in the Supreme Court. As on June 30, 2026, 28 Constitution Bench references remained pending – 21 before five-judge benches, five before seven-judge benches and two before nine-judge benches. Of these, 15 references had remained pending for six years or more, including six for over a decade. Notably, Arjun Flour Mills and N Ravi had remained pending since reference for approximately 27 and 22 years, respectively.
This raises a serious concern as to how delay is shaping the effect of a constitutional challenge and how many years a constitutional reform may take to see the light of day.
Judges speak through their judgments. A separate opinion, constitutionally recognised under Article 145(5), is one of the most visible manifestations of judicial independence and the judge’s freedom to dissent. Justice Datta’s opinion in Jaya Thakur is indeed an expression of that freedom.
The sanctity of a judicial decision lies in the legal reasoning, constitutional principles, statutory provisions and judicial precedents which persuade the judge to arrive at that conclusion and not upon institutional considerations extraneous to the merits of the issue before the Court. If, in an important constitutional matter, two equally placed judges arrive at contrary conclusions and one view ultimately assumes greater practical consequence because of the institutional apprehension of delay, how many such dissents may be rendered practically inconsequential in the day-to-day functioning of courts? How many independent judicial minds may refrain from such dissents just to avoid what Justice Datta referred to as “institutional embarrassment”?
The present Datta–Sharma episode may, therefore, have opened a much larger constitutional question: can institutional delay, without any express rule or external compulsion, operate as an unsaid rule of restraint upon judicial expression?
The freedom to dissent may survive on paper, but the question is whether, in an institution burdened by delay, such freedom can be exercised meaningfully.
Nisha Tiwari is an advocate practising before the Supreme Court of India.
Views are personal.