Column | When The Mandate Ends Before The Verdict

On September 23, 2026, a two-judge Bench of the Supreme Court delivered a split verdict in the challenge to the law governing the appointment of the Chief Election Commissioner and Election Commissioners. The Union had sought a reference to a Constitution Bench. Justice Dipankar Datta found such a reference unnecessary, while Justice Satish Chandra Sharma took the opposite view.

As a sequel, the matter has been placed before the Chief Justice to consider the desirability of constituting a Constitution Bench of appropriate strength. The merits, therefore, remain undecided. In the same order, the Bench lamented the long pendency of constitutional references, describing it as a source of “institutional embarrassment”, and suggested a permanent five-judge Bench.

Only about two weeks later, in the long-pending legislative privilege reference arising from the Tamil Nadu Assembly’s action against The Hindu journalists, Senior Advocate Raju Ramachandran informed a seven-judge Bench that the resolution concerning the dispute had been withdrawn in 2004 and that the issue may therefore have become academic.

Governing In The Interregnum

There could not have been a more ironical occasion for these observations. Previously, in Anoop Baranwal, that itself took about eight years to decide, the Supreme Court had directed that, until Parliament enacted a law, Election Commissioners would be selected by a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Parliament responded with the 2023 Act, replacing the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister. The executive thus occupied two of the three seats on the selection committee responsible for appointments to the Election Commission.

The new law was challenged soon after it came into force. During its pendency, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed Election Commissioners in March 2024. Applications seeking a stay of the appointments and Section 7 of the Act were dismissed by the Supreme Court. The Court was conscious that the Lok Sabha election was weeks away and recorded that interference at that stage could lead to uncertainty and confusion.

While refusing a stay, the Court observed that the Election Commission, as a constitutional body, was expected to act in accordance with the Constitution. The Indian Express report, however, raises serious questions about whether the Commission has lived up to that expectation. At the same time, it expressed concern over the procedure followed in making the appointments. Kumar subsequently became Chief Election Commissioner on February 19, 2025.

It was during this period that the Election Commission ordered the Special Intensive Revision of Bihar’s electoral rolls. The Commission decided to undertake SIR nationwide, with Bihar being taken up first because its Assembly election was due later that year. The revision required fresh verification and treated the 2003 electoral roll as probative evidence of eligibility, while voters not appearing on that roll were required to furnish prescribed documents.

The exercise was challenged immediately. At the first substantive hearing on July 10, the Supreme Court identified three questions: the Commission’s authority to undertake the exercise, the procedure being followed, including the manner in which citizenship was being examined, and the timing of the revision so close to the Bihar election. The final Bihar electoral roll was published on September 30, 2025, with 7.42 crore electors as against 7.89 crore before the exercise began.

The Assembly election was held in November on the basis of the revised roll, and the results were declared on November 14. The validity of SIR was still awaiting a final decision. At the same time, the separate challenge to the 2023 law also remained pending.

It was only in May 2026 that the Supreme Court upheld the Bihar SIR, holding that the exercise was traceable to Section 21(3) of the Representation of the People Act, 1950, read with Article 324, and that the exercise, as conducted, satisfied proportionality. However, by then, the SIR had moved well beyond Bihar. Phase II had already extended the exercise to nine States and three Union Territories, including West Bengal, Tamil Nadu, Kerala and Puducherry, while Phase III covering another sixteen States and three Union Territories had been ordered on May 14, 2026, thirteen days before the judgement.

For much of this period, therefore, two important questions concerning the Election Commission remained before the Court while the Commission continued to exercise the full authority of its office.

A necessary corollary is the question of consequences. If the 2023 Act is eventually held unconstitutional, what follows for decisions taken in the meantime by Election Commissioners appointed under it? The Supreme Court has recognised the de facto doctrine, under which acts performed by a public officer acting under colour of authority may remain valid even where the appointment itself is subsequently found defective. Its application here would, of course, depend upon the eventual judgement and the nature of the invalidity. But the longer the challenge remains undecided, the larger the body of completed action that the Court may eventually have to confront.

When The Case Outlives The Controversy

The Electoral Bonds scheme followed a similar course, with the petitioners repeatedly approaching the Court for a stay. They sought to stop the sale of bonds ahead of the 2019 Lok Sabha election, but the Court directed political parties to submit donation details in sealed covers while allowing the scheme to continue. A further stay application filed in November 2019 was not taken up for hearing, prompting another application ahead of the Assembly elections in 2021.

When the Court declined a stay in March 2021, it expressly relied on bonds having been issued in 2018, 2019 and 2020 “without any impediment”. It also disapproved of repeated applications for the same interim relief whenever a fresh sale was due. The scheme’s continued operation during the pendency of the challenge had thus itself become a reason for allowing it to operate further.

The Constitution Bench eventually struck down the scheme in February 2024. It held, among other things, that anonymity surrounding political contributions violated the voter’s right to information under Article 19(1)(a) and that the removal of limits on corporate political contributions was arbitrary under Article 14.

Political parties had, by then, received thousands of crores of rupees through electoral bonds, and several elections had been conducted while donor identities remained unavailable to voters. Subsequent disclosures showed the BJP to be the largest beneficiary. The judgement brought the scheme to an end, but it could neither undo the funding already received nor revisit the elections fought during the years in which the scheme operated.

Similarly, the challenge to the abrogation of Article 370 remained pending for more than four years. Jammu and Kashmir continued to be governed under the post-2019 arrangement throughout that period. When the judgement came in December 2023, the Court upheld the abrogation. Irrespective of the result, a constitutional question of extraordinary consequence had remained unresolved for more than four years. Had the Court reached the opposite conclusion, restoring the position that existed before 2019 would have involved difficulties of its own.

This, however, is not a novel phenomenon. S.R. Bommai, now celebrated for limiting arbitrary use of President’s Rule, was decided almost five years after the Karnataka government at the centre of the dispute had been dismissed in April 1989. Fresh elections had already been held, and another government had assumed office. Although the Court held the proclamation unconstitutional, restoration of the dismissed government was no longer granted. Interestingly, Bommai the Court held that, in an appropriate case, it could restrain fresh elections by an interim order so that judicial review was not rendered fruitless by a fait accompli.

Anti-defection disputes have suffered from the same difficulty. In Rajendra Singh Rana, arising from the 2003 political crisis in Uttar Pradesh, proceedings concerning the disqualification of thirteen Bahujan Samaj Party legislators continued as the Assembly approached the end of its tenure. The Supreme Court declined to send the matter back for another round of proceedings, expressly noting that remand could make the proceedings infructuous. It also recalled that a similar controversy concerning the previous Uttar Pradesh Assembly had already met that fate after the expiry of its term.

Almost about two decades later, the Maharashtra political crisis showed how a dispute concerning the people’s mandate could lose the possibility of an effective remedy before its final determination. The Court extended the time for the Shinde faction MLAs to answer disqualification notices but refused to stay the floor test, following which Thackeray resigned. When it eventually held that the Governor lacked objective material to call for the test, the Court declined to restore his government because he had resigned without facing it.

The Delhi-Union dispute involved different consequences of delay. The dispute over control of bureaucratic services began with the Union government’s notification of May 21, 2015, went through a Constitution Bench judgement in 2018, a split verdict in 2019 and another reference in 2022. In May 2023, the Supreme Court finally held that the elected Delhi government had legislative and executive control over services, except in relation to constitutionally excluded subjects. Eight days later, on May 19, the Union promulgated an Ordinance altering the position.

So, the larger issue is: can constitutional questions bearing directly upon the people’s mandate be left undecided for so long that the mandate itself substantially runs its course?

Delay As Judicial Abdication

Recurring delay in constitutional adjudication has become a form of judicial abdication, allowing live constitutional disputes to grow stale. On multiple occasions, the Court eventually answered the question, but only after the circumstances in which an effective answer could operate had changed. The 2023 Election Commission law is still awaiting adjudication. The Maharashtra judgement came after Uddhav Thackeray had resigned.

The Delhi dispute consumed a substantial part of an elected government’s tenure. Electoral Bonds continued through several elections before being struck down. SIR was upheld after Bihar had already voted on the revised roll. Irrespective of the result, the Court ought to settle the constitutional question before years of uncertainty.

It is not as if the Court has always taken years to decide questions of this kind. The National Judicial Appointments Commission presents the clearest contrast. The Constitution (Ninety-ninth Amendment) Act and the NJAC Act came into force on April 13, 2015. Their validity was decided in the same year, when a Constitution Bench struck them down by a 4:1 majority.

No appointments to the higher judiciary were made during the period in which the challenge was being heard. The Court therefore never had to confront the much harder question of what would happen to judges appointed through a mechanism that was later held unconstitutional.

Some disputes will, of course, consume substantial time. It is for the Court to recognise which cases cannot afford that delay, especially where intervention at a subsequent stage may serve little practical purpose. Having itself described prolonged constitutional pendency as an “institutional embarrassment”, the Court must now devise a way to ensure that constitutional questions are decided before the passage of time makes the eventual remedy largely academic or for future course correction.

(Views are personal)

Shaileshwar Yadav is an advocate practising before the Supreme Court & Delhi High Court.