CJI BR Gavai must revive Constitution Benches

On May 14, 2025, Justice BR Gavai took oath as the 52nd Chief Justice of India. His priorities as CJI include listing “three-judge bench and constitutional cases” to facilitate greater disposals.

Any discussion on the disposal of constitutional cases, however, is incomplete without considering the Constitution Benches of the Supreme Court.

Constitution Benches, comprising five or more judges, adjudicate cases involving substantial questions of constitutional interpretation. Historically, these cases have settled key questions of individual and collective rights, significantly shaping India’s socio-economic and political landscape.  In the past year too, Constitution Benches have upheld the political integration of the State of Jammu & Kashmir with India, struck down the electoral bonds scheme and qualified the State’s power to acquire private property.

However, over the past six months, the Supreme Court seems to have dropped the ball on Constitution Benches. During ex-CJI Sanjiv Khanna’s tenure, only one Constitution Bench case was heard and disposed, in stark contrast to the 31 cases disposed under CJI DY Chandrachud. As a result, several constitutionally significant cases are pending and require the present CJI’s immediate attention. 

According to Vidhi’s Constitution Bench Pendency Project, 28 main and 265 connected Constitution Bench matters are pending as of May 13. On average, these cases have been pending for 2,562 days (7 years) from the date of their reference. Nearly 7 years of inaction have passed since these cases were first identified as constitutionally significant and referred to larger benches. Concerningly, four of these cases have been pending for more than 15 years from the date of their reference.

Of these, a bench has been constituted in only one case - Tej Bhan v. Ram Kishan - to clarify the law on women’s property rights under the Hindu Succession Act, 1956. In 11 of the 28 cases, the Court has not constituted a bench even once. This includes the In re: framing guidelines case that requires the Court to frame guidelines regarding the mitigating circumstances in death sentences. SG Vombatkere, despite dealing with the contentious issue of Sedition law, has also not been listed before any Constitution Bench since its reference. State of Kerala v. Union of India, which questions the Union’s power to impose borrowing limits on states, also languishes unheard.

On the other hand, 14 cases require the Court to reconstitute benches due to the retirement of judges. These include Kantaru Rajeevaru, which pertains to the interplay between the right to equality and freedom of religion; In re Article 334, which will decide whether legislative assemblies should provide reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs); and Subhash Desai, which will clarify the Speaker’s power to disqualify Members of Legislative Assemblies (MLAs).

Given the seminality of these cases, delays in their disposal has far-reaching implications, not only for citizens’ rights, but also for the Supreme Court’s authority as the apex court. Non-adjudication of these cases means critical rights remain in abeyance. The right of death row convicts to a meaningful sentencing hearing; Muslim women’s right to pray in mosques; and the freedom of press to critique conduct of MLAs in legislative assemblies, are some of the several rights that remain undecided. By failing to adjudicate these cases, the Court eschews its responsibility as the final interpreter of the Constitution.

Absence of decision in Constitution Bench cases also undermines the Supreme Court’s precedential authority. Many of these cases have reached Constitution Benches due to the presence of conflicting coordinate bench judgments. Without an authoritative pronouncement by the Supreme Court, trial courts and High Courts continue to apply precedents selectively and inconsistently. For instance, despite a Supreme Court judgment to the contrary, 90% of all death penalty sentences in 2024 were imposed in the absence of adequate information about the accused.

The Court must list and hear Constitution Bench cases on a priority basis. Though the incumbent CJI’s focus on constitutional cases appears pendency-driven, these cases merit attention regardless of their impact on disposal rates, simply for the sheer significance of the issues involved. Systems for the efficient disposal of these cases already exist. Former CJI UU Lalit’s proportionate, seniority-based allocation of 25 cases among 5 Constitution Benches ensured that the listing and disposal of these cases continued even after his retirement. The practice of limiting oral argument time for lawyers has allowed the Court to conclude these cases in 4.9 hearings on average. While a six-month tenure is short, CJI Gavai can still sustain the momentum so that Constitution Bench cases are not relegated to a docket exile.

Jyotika Randhawa is a Research Fellow in the Judicial Reforms team at the Vidhi Centre for Legal Policy, Bengaluru.