A Court divided by its own architecture

1. At a Glance

• The issue: On 23 September 2026, a two-judge Bench of the Supreme Court gave a split verdict on challenges to the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023. The judges disagreed on whether a two-judge Bench could decide the case at all, not on whether the law is valid [1][3][4].
• Why it is called "architectural": The Court sits in many small Benches of two or three judges. Constitutional cases get spread across these Benches, which leads to inconsistent rulings and fights over which Bench should hear what. The source column argues the Court needs structural reform to make constitutional adjudication more consistent [1].
• Why it matters for UPSC: The topic links Article 145(3), Article 324 (Election Commission), judicial independence, Election Commission independence and the Anoop Baranwal (2023) judgment. It suits a GS-II question on the judiciary or on constitutional bodies [1][2].

2. Why in the News

• 23 Sep 2026: A Bench of Justices Dipankar Datta and Satish Chandra Sharma split over whether it was competent to hear the challenge to the 2023 Act [1][3]. The judgment is reported as 2026 INSC 1040 [4].
• Justice Datta rejected the Union's request to send the case to a larger Bench. He also observed, prima facie, that the 2023 law did not appear to ensure an independent process for selecting ECs [3].
• Hearings began in May 2026. Partway through, the Union government argued that the case raised a substantial question of law as to the interpretation of the Constitution, so it needed a Bench of at least five judges under Art. 145(3) [1][3].
• May 2026: During the case, the Court remarked that the EC must be independent, because free and fair elections are part of the basic structure [6].
• Sep 2026: There was parallel public debate on whether the CEC can be prosecuted, given the immunity the 2023 Act provides [10].

3. Background & Evolution

• Art. 324(2) says the President appoints the CEC and ECs, subject to any law made by Parliament. No such law existed until 2023 [2].
• 2 March 2023, Anoop Baranwal v. Union of India: A five-judge Constitution Bench ruled that, until Parliament made a law, appointments would be made on the advice of a committee of the Prime Minister, the Leader of Opposition (LoP) and the Chief Justice of India (CJI) [1][2].
• December 2023: Parliament passed the 2023 Act (Act No. 49 of 2023). It removed the CJI from the committee and added a Union Cabinet Minister nominated by the PM [1][5][9].
• March 2024: Petitioners, including a Congress leader, asked the SC to stop the government from appointing new ECs under the Act [7]. The SC ruled on related matters on 22 March 2024 (2024 INSC 246) [8].
• May to September 2026: The main hearings ended in the split verdict described above [1][3].

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• Art. 145(3) sets a minimum Bench size for substantial constitutional questions. Who decides whether a question is "substantial" is itself contested, and that dispute caused this split [1][3].
• The Union raised the Art. 145(3) plea in the middle of the hearings. The column flags this as procedurally odd [1].
• The case asks whether Parliament can legislate around a Constitution Bench's interim arrangement in Anoop Baranwal [1][2].

Governance / Institutional (Election Commission independence)

• When the government nominates two of the three committee members, the executive holds a majority. Justice Datta, prima facie, saw "no independent counterweight" in the process [3].
• Free and fair elections are part of the basic structure, so how the EC is selected affects the core of the Constitution [6].

Administrative (the Court's internal architecture)

• When a two-judge Bench splits, the case usually has to go to a larger Bench. This delays a ruling on the merits while appointments under the Act continue [1][3].
• Many small, separate Benches produce inconsistent precedents. The column proposes structural reform, such as dedicated constitutional Benches [1].

Ethical / Governance

• The Act gives the CEC and ECs immunity while the executive dominates their selection. This raises questions about accountability for these officers [10][3].

6. Recent Developments (last 12–18 months)

• May 2026: Final hearings began. The Bench said the EC must be independent and that free and fair polls are part of the basic structure [1][6].
• Mid-hearing, 2026: The Union sought a reference to a larger Bench under Art. 145(3) [1][3].
• 23 Sep 2026: The two judges split on whether the Bench was competent to hear the case. Justice Datta rejected the reference plea [3][4].
• 30 Sep 2026: Public debate grew over the CEC's immunity from prosecution under the 2023 Act [10].
• 3 Oct 2026: The Hindu published an op-ed by Suhrith Parthasarathy (Advocate, Madras HC) calling for structural reform of the SC [1].

7. Prelims Hooks

• Art. 145(3) requires at least five judges to decide a substantial question of law on interpreting the Constitution [1].
• Art. 324(2): The President appoints the CEC and ECs, subject to a law made by Parliament [2].
• The 2023 Act is Act No. 49 of 2023 [5].
• Selection Committee chairperson: the Prime Minister [2].
• The LoP in Lok Sabha, not Rajya Sabha, sits on the committee [2][5].
• The third member is a Union Cabinet Minister nominated by the PM, not the CJI [5].
• Anoop Baranwal v. UoI (2023) was decided by a five-judge Constitution Bench [1].
• The Anoop Baranwal committee was PM, LoP and CJI [2].
• The President makes the appointment on the committee's recommendation [5].
• The Act was enacted in December 2023 [1].
• Split verdict on 23 Sep 2026, by Justices Dipankar Datta and S.C. Sharma [3].
• Citation: 2026 INSC 1040 [4].

8. Why Two Judges Could Not Even Agree on Who Should Hear the Case

• The two judges answered one question in opposite ways
• Justice Sharma held that the case raises a substantial question of law. He said a larger Bench should decide it [3].
• Justice Datta said no larger Bench was needed. He also found, prima facie (on a first look, before a full hearing), that the law does not ensure an independent selection process [3].

• So the split is about who should hear the case. It is not about whether the law is good or bad. But each answer points towards a different result.

• Article 145(3) does not say who decides what counts as "substantial"

• The Article says five judges are needed for a substantial question about the meaning of the Constitution. It does not say who decides whether a question is substantial.
• So the Bench that is already hearing the case has to decide it. When two judges disagree, nobody can break the tie.
• The Bench sent the matter to CJI Surya Kant on the administrative side, so that he can set up a Bench "of appropriate strength" [3][4].

• In plain words, the CJI's Master of the Roster power (his power to decide which judges hear which case) now settles a question the judges themselves could not settle.

• Raising the issue late makes it a weapon

• The Bench reserved its order on the larger-Bench plea on 30 July and gave it on 23 September 2026 [3].
• For about eight weeks, the only question was whether the Bench could hear the case at all.
• Since no rule says when a party must raise Article 145(3), a side that gains from delay can raise it late in the hearing. The Union raised it mid-hearing [1].

9. Who Gains While the Case Waits

• A law that is not stayed keeps working while it is challenged
• In March 2024 the Supreme Court refused to stop appointments under the Act. It said that interfering with them "would lead to chaos" [12][8].
• A stay is a court order that pauses a law until the case is decided. Without one, Election Commissioners chosen by the new committee have held office throughout the case.

• Every month of delay means more elections are run by officers whose method of selection is under challenge.

• The delay comes when trust in the EC is already low

• On the same day as the split verdict, the Opposition demanded the arrest of CEC Gyanesh Kumar. The EC replied that its decisions were "unanimous" [15].
• The 2023 Act gives the CEC and ECs immunity (protection from court cases) for their official acts [10].

• Put together: the government picks two of the three people who choose the EC [5], the officers are protected from prosecution [10], and the court has not yet decided whether this is valid. For now, nothing outside the government checks how the EC is chosen.

• Delay is not neutral

• The side defending the present system gains from every day without a ruling. That side is the Union.
• This is why the timing of the Article 145(3) plea matters, and not just its legal merit [1][3].

10. The Strongest Case for the 2023 Act, and Where It Falls Short

• The case for the Act: the Constitution gives this job to Parliament
• Article 324(2) says appointments are "subject to any law made by Parliament" [2].
• Anoop Baranwal itself said the PM–LoP–CJI committee was only a stop-gap arrangement until Parliament made a law [1][2]. Parliament then made one.

• Even the Bench asked, in May 2026, whether a court can direct Parliament to put the CJI on the panel [11]. Courts cannot write laws. That is the separation of powers (each branch of government keeps to its own work).

• What is right about this argument

• No court can order Parliament to add the CJI. A court can only strike down a law, not rewrite it.

• Nothing in the Constitution says the CJI must be on the panel. Article 324(2) names no members [2].

• Where it falls short

• A power to make a law is not a power to make any law. The Court has said free and fair elections are part of the basic structure (the core of the Constitution that even Parliament cannot change) [6].
• The question is not "CJI or no CJI". The question is whether the panel has any member the government does not control. Under the Act, the PM and a minister he nominates form a majority of the three [5].

• That is why Justice Datta wrote of "no independent counterweight" [3]. He was pointing at the government majority, not at the CJI's absence.

• What this means for an answer

• A balanced answer accepts that Parliament has the power under Article 324(2). It then asks whether this law, as written, protects the independence that the basic structure needs.

11. The Fix the Law Commission Proposed in 1984 and Again in 2009

• The idea: split constitutional cases from ordinary appeals
• The Law Commission's 229th Report (2009) said the Supreme Court should have a Constitution Bench at Delhi. It also proposed four cassation Benches (Benches that hear only ordinary appeals) at Delhi, Chennai/Hyderabad, Kolkata and Mumbai [13].

• The 95th Report (1984) had made a similar proposal [13].

• Why it would help in this case

• A permanent Constitution Bench would hear every constitutional challenge from the start.
• The Article 145(3) dispute would then mostly disappear. Cases like this one would not begin before two judges and later fight over moving up.

• It would also reduce what the column calls inconsistent rulings from many small Benches [1].

• Why it has not happened

• The Union Law Minister told the Lok Sabha that the Supreme Court did not favour Benches outside Delhi [14].

• So the proposal stalls on the regional Benches, even though the Constitution Bench part is separate and could be done alone.

• What can be done without new laws

• The CJI, as Master of the Roster, could make a standing rule: the Article 145(3) question must be decided when the case is admitted, not halfway through the hearing.
• This would stop a party from using the issue late. It needs no change to the Constitution, only an administrative order.
• The CJI could also set up a standing Constitution Bench at Delhi alone. This follows the 229th Report's core idea and does not need the regional Benches the Court has opposed [13][14].

12. Anchors for Answers

• Data: The government picks 2 of the 3 members of the EC selection committee (the PM and a minister he nominates) [5]
• Report/Committee: Law Commission 229th Report (2009): a Constitution Bench at Delhi plus four regional cassation Benches. Similar proposal in the 95th Report (1984) [13]
• Law/Case: Art. 145(3); Art. 324(2); Anoop Baranwal v. UoI (2023); 2026 INSC 1040 (split verdict, matter sent to the CJI on the administrative side) [2][4]
• Law/Case: In March 2024 the SC refused to stay appointments under the 2023 Act, saying interference "would lead to chaos" [12][8]

13. Mains Relevance

• GS-II: Structure, organisation and functioning of the Judiciary. Appointment to various constitutional posts. Powers, functions and responsibilities of constitutional bodies (ECI).
• GS-II: Separation of powers. Salient features of the Representation of People's Act and electoral integrity.
• Possible question stems: 1. 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). (15 marks) 2. Does the 2023 law on appointing Election Commissioners strike the right balance between parliamentary sovereignty and the independence of the Election Commission? Discuss with reference to Anoop Baranwal (2023). (15 marks) 3. Who should decide when a case involves a 'substantial question of law as to the interpretation of the Constitution'? Critically analyse. (10 marks)

14. Related Topics to Study Next

• Master of the Roster and the CJI's administrative powers: these decide which judges sit on which Bench.
• Constitution Benches and Art. 143 (advisory jurisdiction): other routes by which large Benches are formed.
• National Court of Appeal / regional Benches debate: proposals to restructure the Supreme Court.
• Removal of the CEC versus the ECs (proviso to Art. 324(5)): links to the security of tenure of election officers.
• NJAC judgment (2015): a parallel case on executive involvement in appointments to an independent institution.
• Appointment models for the CBI Director, Lokpal and CVC: comparable selection committees, some of which include the CJI.
• Basic structure doctrine and free and fair elections: the doctrine the Court invoked on EC independence.

15. Common Errors / Trap Areas

• The Bench was split on whether a two-judge Bench was competent, not on whether the Act was valid [1].
• The committee includes the LoP in Lok Sabha, not the LoP in Rajya Sabha [2].
• Anoop Baranwal put the CJI in place of a Minister, and the 2023 Act reversed this. Do not mix up which arrangement had which third member [1][2].
• Art. 145(3) sets a minimum of five judges, not a required Bench of exactly five or seven [1].
• The appointing authority is the President. The committee only recommends [5].