Master of the roster, author of uncertainty

On 23 September 2026, a two-judge bench unanimously referred challenges to the Appointment of Election Commissioners Act, 2023 to a larger bench, despite a difference of opinion on whether the reference was warranted. Notably, they turned the Order into a critique of its own institution. Referring to the eight-year journey of Anoop Baranwal v Union of India (2023) and the 24-year odyssey of State of Uttar Pradesh v Jai Bir Singh (2026), the Bench of Justices Dipankar Datta and S.C. Sharma observed that the pendency of larger bench references is “a source of institutional embarrassment”. This remark goes beyond a mere academic observation, as Justice Datta was on the nine-judge Bench that concluded Jai Bir Singh just a few months ago. They urged the CJI to constitute a permanent Constitution Bench to address the concern.

The current procedure for references operates without any timeline or accountability mechanism. While final adjudication by a Constitution Bench remains pending, the law in question continues to be applied even after concerns over its validity have been acknowledged by the Court. As of 10 October 2026, there are 35 such references pending before the Court, with the oldest instituted in 2011.

As master of the roster, the CJI alone decides when a larger bench is constituted, and the Court has described that power as one held in trust for the institution. Exclusive power held in trust carries a duty to exercise it, even if only to indicate that no larger bench is required. Until this obligation is fulfilled, coordinate benches operate in a doctrinal uncertainty of the CJI’s own making. 

Reference outlives relevance

On 13 October 2022, a Bench of Justices Hemant Gupta and Sudhanshu Dhulia delivered a split verdict on the hijab ban in Karnataka and referred the matter to a larger bench. While Justice Gupta upheld the ban as consistent with secularism and discipline, Justice Dhulia struck it down as an assault on dignity, privacy and access to education for young girls. The file remained shelved since then, through the tenure of former CJIs U. U. Lalit, D.Y. Chandrachud, Sanjiv Khanna, B.R. Gavai, and now most probably through the remaining 98 days of CJI Surya Kant.

In the meantime, a nearly identical hijab ban imposed by a Mumbai college was upheld by the Bombay High Court and then partly stayed by the Supreme Court in August 2024. The presiding judge on the Division Bench candidly noted the pendency of the larger bench on the record. A second hijab ban dispute has thus been litigated, stayed and commented on by a bench with no authority to settle the underlying question, merely because the appropriate bench is yet to be convened.

Then, in May 2026, the Karnataka government withdrew the 2022 order and issued a new dress-code circular permitting hijabs, turbans, sacred threads and similar articles of faith alongside prescribed uniforms, while pointedly excluding saffron shawls. The very executive order whose validity occasioned the reference no longer exists and yet the reference remains formally alive, because nothing in Court procedure requires anyone to notice that the ground has shifted.

The fact that both judges who referred the case have since retired is an embarrassing indication of how long it remained unassigned. When the Constitution Bench is finally constituted, it will inherit a cold record on a question that was once urgent enough to warrant interruption of an academic year.

Similarly, on 12 February 2020, State of Chhattisgarh v Amit Aishwarya Jogi was referred to test a 2010 decision. Nearly six years later, a three-judge Bench was constituted to answer that question and the answer, when it finally came, was that a larger bench was not necessary at all. The reference was rejected.

The Supreme Court’s own recent practice shows how this can end. In N. Ravi v Speaker, Legislative Assembly, Chennai, a reference on the relationship between legislative privilege and Article 19(1)(a) was made in 2003. On 6 October 2026, a seven-judge Bench disposed of the case as infructuous, because the Tamil Nadu Assembly had withdrawn the impugned resolution against The Hindu’s journalists on 30 July 2004, a fact that had, in the Bench’s own words, “escaped the Court’s notice”. The questions of law were left open for an appropriate case. 

If the hijab Ban reference follows that course, the Court may close it without ever deciding whether a State can impose such a ban in the first place. A reference that outlives its cause allows the Court to avoid a sensitive question. The objection is not that the Court may decline to answer, but that it declines by default on technical grounds rather than a reasoned judicial order. The above analogy has limits. N. Ravi was a reference by a five-judge Constitution Bench to reconcile two earlier Constitution Benches judgment, whereas the hijab reference arises from a split verdict of a two-judge Bench on a High Court judgment that remains in force. Whether the May 2026 circular makes the appeals infructuous is arguable, not given. The risk is that the reference is allowed to lapse by drift, not that it must.

Consequence of uncertainty

On 18 May 2026, a Bench of Justices B.V. Nagarathna and Ujjal Bhuyan, in Syed Iftikhar Andrabi v National Investigation Agency, granted bail to an undertrial who had been in custody for nearly six years under the Unlawful Activities (Prevention) Act, 1967 and the Narcotic Drugs and Psychotropic Substances Act, 1985. It held that the Division Bench rulings in Gulfisha Fatima v State (NCT of Delhi) (2026) and Gurwinder Singh v State of Punjab (2024) had “hollowed out” the binding three-judge precedent in Union of India v K.A. Najeeb (2021) by treating it as a narrow factual exception rather than the governing rule against prolonged incarceration. Both rulings were authored by Justice Aravind Kumar.

Four days later, Justice Kumar was on the Bench with Justice P.B. Varale in Tasleem Ahmed v State Govt of NCT of Delhi. Rather than simply accepting the correction delivered in Andrabi, they referred the same question on Article 21 and its relation to statutory bail restrictions to a larger bench. The reference was made at the Union’s request, while pointing to Andrabi as proof of a “perceived divergence”. While the order is careful to clarify that it does not dilute Najeeb, the decision to doubt a coordinate bench’s reading of a binding law and refuse to follow it remains questionable.

Adding another wrinkle to the record, Justices Kumar and Varale then proceeded to grant six months’ interim bail to Ahmed and Khalid Saifi, who were in custody since 2020. The Bench simultaneously identified a law as unsettled and applied it nonetheless.

Not everyone has had this luxury. Barely five months since the reference, High Courts are already splitting on how to apply the law in the interim. On 14 September, a Delhi High Court granted bail to an undertrial and relied on a 2023 Supreme Court decision to hold that the pending reference “is no reason for a High Court to defer decision.” On 7 July, a different bench of the Delhi High Court denied bail to those accused in the 2008 Delhi serial-blasts case, relying on the Supreme Court’s June 2026 observation that in case of conflict between “the sovereignty of country and personal liberty, undoubtedly, the former shall prevail.” Reluctant to deliberate on a question referred to a Constitution Bench, the Court effectively resolved the liberty-versus-security balance without fully engaging with it.

These conflicting decisions were passed within ten weeks of each other. Similar differences are likely to recur at every UAPA bail hearing for as long as the Tasleem Ahmed reference remains unassigned.

Not isolated incidents

It would be convenient to treat these examples as outliers, but there is a wider pattern to be seen. In 2024, Tej Bhan v Ram Kishan was referred to a larger bench due to several conflicting decisions stemming from a 1977 judgement. The question referred was whether a Hindu female’s limited estate under a will is transformed into an absolute one under Section 14(1) of the Hindu Succession Act, 1956, or remains restricted under Section 14(2). For two years now, every trial court and High Court hearing a succession dispute has had to pick a side in the conflict, because the Supreme Court has acknowledged that the conflict exists but is yet to decide which side is right.

In a similar manner, Motor Accident Claims Tribunals continue to apply the Supreme Court’s formula for enhanced compensation despite a 2025 reference over its retrospective application to pre-2017 accidents.

Identical references

The insurer-liability question under Section 163A of the Motor Vehicles Act, 1988 has been referred twice, first in August 2025 and then again in December. Meanwhile, division benches continue to decide individual motor-accident claims by applying the precedent line that is under doubt. What’s more, a cognate question was referred three years prior on whether the claims under the MV Act are barred when an insured employee received compensation under the Employees’ State Insurance Act, 1948. 

Likewise, three identical references were made, in two cases regarding exemption of minority institutions from the Right to Education Act, 2009. In 2014, and again in 2018 by a different bench, Ashwini Thanappan v The Director of Education was referred to a larger bench to determine the correctness of conflicting precedent. On 1 September 2025, Anjuman Ishaat-e-Taleem Trust v State of Maharashtra referred the same question while recording the 2018 reference. The institution did not fail to notice its own backlog, it was noticed, cited, and left exactly as it was because the only mechanism for its resolution lies in the hands of the CJI.

The same question under Section 156(3) of the Code of Criminal Procedure, 1973 has been referred three times. In Manju Surana v Sunil Arora, a Bench asked whether prior sanction under the Prevention of Corruption Act, 1988 is needed when a Magistrate orders an investigation, or only when the Magistrate takes cognizance. The same question was referred again first in Shamim Khan v Debashish Chakrabarty and then in B.S. Yediyurappa v A. Alam Pasha. More than eight years after the first reference, no larger bench has been constituted, and Magistrates and High Courts continue to apply whichever line of authority they prefer.

The argument for discipline

None of this is a criticism of any individual Chief Justice. The problem is structural. Article 145(3) and Order VI of the Supreme Court Rules, 2013 determine when a bench may or must refer a matter; nothing in the Constitution, the Rules, or settled practice tells the CJI’s office by when it must act on that reference. The “master of the roster” doctrine vests the CJI with exclusive authority over case allocation precisely because someone must have final say over an unwieldy docket.

The urgency is not uniform across the list of pending references: A reference on stamp-duty valuation or ESI set-off costs money; a reference on a bail costs liberty of real people who may spend years in custody. This gives rise to a need for triage as well as a timeline. A formal obligation that could take the shape of a presumptive administrative window, say, one term, or six months, within which the CJI’s office must either constitute the appropriate bench or record why it is no longer warranted. Even the latter would be an improvement on the status quo: A duty to speak, even to speak a refusal, is a lower bar than a duty to decide, and it is one the institution can meet without disturbing the CJI’s substantive discretion.

Until such a norm exists, the pattern documented here will repeat. The Constitution does not exempt the CJI’s mastery from the discipline that every other constitutional function is expected to observe: that power exercised without a deadline is very often power not exercised at all.