Analysing the backlog of referrals in the Supreme Court

Last month, there was much discussion after challenges to the mode of appointments to the Election Commission of India were referred to a larger bench. Despite their split verdict, Justices Dipankar Datta and S.C. Sharma issued a common order to refer the matter and flagged pendency of larger bench references as a matter of institutional concern. 

In light of their remarks, I examined the 35 larger bench references currently pending before the Supreme Court and argued that the lack of a timeline for constitution of larger benches has resulted in a peculiar asymmetry. This is an analysis of broader patterns that have emerged from the 35 matters.

The data was collected on 10 October 2026 through legal news media coverage and a Boolean search with the following keywords: “larger bench”, “Chief Justice of India”, “refer” and “Registry is directed to place”.

A complete table with the underlying numbers and raw data is available in this annexure.

Greater delay before a reference than after

Pendency is typically measured as the time taken from the date a case is first instituted. When a case is referred for consideration by a larger bench, its timeline of pendency may be split into two: the time taken for the Court to identify and agree upon the need for a reference, and the time taken by the Court to constitute an appropriate bench and disposal of the matter after reference.

In 18 of the 35 cases (51 per cent), the dispute was pending for a longer period of time before the reference than after. For these litigants, the reference is a further step in a long process and not the beginning of their wait.

A majority of cases have been pending for 2-5 years after reference

37 per cent of cases have been pending after reference for 2-5 years. Only one matter, Manju Surana v Sunil Arora, falls in the 5-10 year band, and one, Ashwini Thanappan v Director of Education, has been pending after reference for more than a decade.

A majority of pending references pertain to criminal and constitutional law

Three observations may be inferred from these two figures on subject matter distribution. First, criminal law disputes account for nearly three in ten of all pending references. These matters are referred with little delay (typically within seven months) but remain pending after reference for more than two years. The second-longest pending reference overall, Manju Surana v Sunil Arora, is also a criminal matter. Five of the ten concern liberty directly: default bail under the Narcotic Drugs and Psychotropic Substances Act, 1985, arrest under the Prevention of Money Laundering Act, 2002, Article 21 and statutory bail restrictions, and surrender prior to adjudication of a revision petition. 

Second, constitutional questions are few in number but are among the longest pending matters. Notably, the median time is significantly increased by Ashwini Thanappan.

Third, the references span a wide range of subject areas, hence the complexity of subject matter alone cannot account for the backlog.

Only one reference was made between 2015-2020

The dataset records only one pending reference from 2015 to 2020 and only one from 2021. . This gap can be read two ways: Either a number of older references were decided in this period, or the Boolean search under-captures older and less-reported matters. Because the dataset lists only references that remain pending, it cannot yield a clearance rate.

11 cases were referred to a larger bench in 2025 and eight in this year alone.

The same concern, referred more than once

11 of the 35 entries (31 per cent) can be categorised into five clusters (four pairs and one group of three), each arising from the same precedent/substantial question of constitutional interpretation. While a reference is pending, later benches confronted with the same question refer it again and keep the concern up in the air.

Interestingly, in Ashwini Thanappan, the same two-judge Bench which referred the case in 2014 took note of its pendency four years later and referred the matter again. In September 2025, another two-judge Bench in Anjuman Ishaat-e-Taleem Trust v. State of Maharashtra noted the pending question for a second time and referred it again. Despite these three references, a larger bench has yet to be constituted.

A similar pattern appears in the line of cases on Section 156(3) of the Code of Criminal Procedure, 1973. Whether a Magistrate who directs an investigation under that provision thereby takes cognizance of the offence, and so whether prior sanction is required at that stage, was first referred in Manju Surana in March 2018, and again in Shamim Khan v Debashish Chakrabarty in April 2024 and B.S. Yediyurappa v A. Alam Pasha in April 2025. More than eight years after the first reference, a larger bench has yet to be constituted.