Split verdicts by small Benches expose a structural weakness in India's Supreme Court. Examine the case for a permanent Constitution Bench in light of Article 145(3).

Article 145(3) says a Bench of at least five judges must decide any "substantial question of law as to the interpretation of the Constitution". In practice, most constitutional cases start before two- or three-judge Benches. On 23 September 2026, two judges split on challenges to the 2023 Election Commissioners Act. They did not disagree on whether the law was valid. They disagreed on whether their own Bench could hear the case at all [1]. This shows the cost of how the Court is organised.

Structural weakness exposed

• No tie-breaker: Art. 145(3) does not say who decides when a question is "substantial". When a two-judge Bench splits on this, no one can break the tie. The matter went to the CJI on the administrative side [1].
• Delay used as a tactic: The Union sought a larger Bench only after hearings had begun, and months went into this single question [1]. Meanwhile, the Act kept operating. It had replaced the CJI on the selection panel with a Minister nominated by the PM, after Anoop Baranwal (2023) [2].
• Inconsistent precedent: Many small Benches deciding constitutional questions produce conflicting rulings and repeated references to larger Benches.

Case for a permanent Constitution Bench

• Expert backing: The Law Commission's 229th Report (2009) proposed a Constitution Bench at Delhi, with regional cassation Benches for ordinary appeals [3].
• Parliamentary support: The Standing Committee on Law and Justice (2023) said Delhi should hear constitutional matters while regional Benches decide appeals [4].
• No more threshold disputes: Constitutional challenges would go to five or more judges from the start. Art. 145(3) would then apply automatically.
• Authoritative rulings: Questions such as Election Commission independence would get timely and consistent answers.

Concerns

• In 2010, the Supreme Court's Full Court decided not to accept the Law Commission's proposal for regional Benches [5].
• A fixed Bench could concentrate power in a few judges and take judges away from the appeals backlog.

Way forward

• The CJI, as Master of the Roster, can require the Art. 145(3) question to be settled when a case is admitted, not halfway through the hearing.
• A rotating standing Constitution Bench at Delhi can be set up without the contested regional Benches.

The split verdict shows that the Court's structure can let questions of procedure crowd out the merits of a case. A rotating Constitution Bench, together with settling the Art. 145(3) question early, would give effect to the framers' idea of collective deliberation. It would also strengthen the Court's credibility as the guardian of constitutional bodies like the Election Commission.