Who should decide when a case involves a 'substantial question of law as to the interpretation of the Constitution'? Critically analyse.

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". It does not say who decides whether a question is substantial. The gap came into the open on 23 September 2026, when a two-judge Bench split on the Union's plea for a larger Bench in the challenge to the CEC and ECs Act, 2023 [1][3]. The question is also left open because of a structural weakness in how the Court sits.

Option 1: The Bench hearing the case

• Strengths: It knows the case well and fits judicial autonomy. No outside actor second-guesses the judges.
• Weaknesses: No one can break a tie. Justice Datta rejected the reference and Justice Sharma supported it, so the issue went unresolved [1]. Because no rule says when the plea must be raised, the Union could raise it mid-hearing. That delayed a ruling on whether the Act gives the government a majority in selecting ECs [1][2][3].

Option 2: The CJI as Master of the Roster

• Strengths: The CJI gives one decision quickly. The split Bench itself sent the papers to the CJI on the administrative side to set up a Bench "of appropriate strength" [1].
• Weaknesses: A judicial question gets settled by an administrative order, with no reasons given and no review. Giving one office this much power worries people, especially in cases that involve the executive.

Option 3: Fixed rules and a permanent Constitution Bench

• Strengths: The Law Commission's 229th Report (2009) proposed a standing Constitution Bench at Delhi, with separate cassation Benches hearing ordinary appeals [4]. Constitutional challenges would start before five judges, so the dispute over Bench size would largely disappear. Rulings would also be more consistent than those from many small Benches.
• Weaknesses: The Court would have fewer judges for ordinary appeals. The idea has stalled because of the proposed regional Benches.

Way forward

• Decide the Article 145(3) question at admission, through a rule framed under Article 145(1).
• If the judges disagree, the CJI should refer the case with reasons recorded.
• Set up a standing Constitution Bench at Delhi by administrative order.

Admission → 145(3) check → Yes: Constitution Bench
                         → No: Regular Bench (no mid-hearing reopening)

Flowchart: proposed screening at admission

The best answer combines all three: the hearing Bench makes the first call, the CJI acts only as a tie-breaker who gives reasons, and fixed rules close the gap. This would prevent strategic delay. It would also protect constitutional supremacy, which the Anoop Baranwal ruling defended for the Election Commission [2].