A Court divided by its own architecture

Why in the News

A two-judge Bench of the Supreme Court has split on the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The judges differed not on the law’s validity but on whether a Bench of two could decide it at all, which exposes how the Court is organised.

What does the 2023 Act provide, and what did Anoop Baranwal settle?

1. Selection committee: The Act, enacted in December 2023, has the Prime Minister, the Leader of the Opposition and a Minister chosen by the Prime Minister recommend Election Commissioners.
2. Interim arrangement: Earlier, in Anoop Baranwal vs Union of India (2023), a five-judge Constitution Bench had seated the Chief Justice of India (CJI) in the Minister’s place, as a stopgap until Parliament legislated.
3. Settled principle: Baranwal read Article 324, which creates the Election Commission, to require appointments insulated from exclusive executive control. Under Article 141, that declaration binds every court.
4. The takeaway: Parliament could drop the CJI, but the Act must still meet Baranwal’s standard of insulation from the executive.

Why did the Bench split?

1. Union’s late plea: Midway through hearings, the Union invoked Article 145(3) to seek at least five judges, a plea absent from its written reply.
2. Datta’s view: Justice Dipankar Datta refused, holding that testing a committee where the executive holds two of three votes only applies Baranwal’s settled rule, so two judges suffice.
3. Sharma’s view: Justice Satish Chandra Sharma agreed with the Union, since no ruling yet exists on the 2023 Act’s validity.
4. Unusual referral: A split of two normally goes to three judges. Both instead asked the CJI to form a Constitution Bench, so petitioners in court since early 2024 wait again.

Does Article 145(3) require a Constitution Bench for every new law?

1. Text of the provision: Article 145(3) requires five judges only for a substantial question of constitutional interpretation, not for every important case or new statute.
2. Settled test: Thakur Ganga Singh (1959) held interpretation arises only when parties advance competing readings of a constitutional provision. A three-judge Bench applied this to the provision in PUCL vs Union of India.
3. Two-judge landmark rulings: On Sharma’s test, two-judge Benches could not have decided Shreya Singhal (Section 66A) or NALSA (transgender identity).
4. Weak stare decisis: Stare decisis means courts stand by earlier rulings. Here a Bench of two declined to apply a principle five judges had settled.

How has the Court’s structure produced delay?

1. Original design: The Court began in 1950 with six judges, so the five-judge rule assumed it would mostly sit together.
2. Today’s court: With 38 sanctioned judges sitting mainly in small panels on special leave petitions (requests to appeal), a Constitution Bench forms only when five judges are spare.
3. Many courts in one: Scholar Nick Robinson calls the result many courts, each Bench speaking in its own voice.
4. Decade-long references: Anoop Baranwal took eight years, and the Jai Bir Singh “industry” reference lay dormant 15 years. The judges call such delay “institutional embarrassment”.

What reform is proposed, and what must it guard against?

1. Permanent Constitution Bench: The joint order asks the CJI to explore a standing Bench for pure constitutional questions. The Law Commission’s 229th report (2009) proposed this, with regional Benches hearing appeals.
2. Composition risk: The CJI can create such a Bench without amendment, but choosing its members shapes outcomes, so pre-set, transparent rules must decide composition.
3. Inverted role: The Court, conceived as a guardian of the Constitution that also hears appeals, now sits mainly as an appellate court.

Challenges

1. Appeal-heavy docket: Special leave petitions leave few judges free for five-member Benches.
2. Regional Bench resistance: The Court has long resisted regional Benches, so the Law Commission model has stalled.
3. Elections under doubt: Commissioners chosen under the contested law will oversee several State and likely general elections before the case ends.

Way Forward

1. Roster committee: Bench formation should pass to a committee of the CJI and the next two senior-most judges.
2. Reference deadlines: The Court should fix timelines for hearing references to larger Benches.
3. Precedent discipline: A smaller Bench doubting a larger one should refer the doubt, not bypass the ruling.

Conclusion

Until constitutional cases get a standing Bench chosen by fixed rules, the Court will keep settling its gravest questions after the fact. Whether the CJI forms a Constitution Bench for this case, and on what rules, is the decision to watch.

Matching Previous Year Question

“[2022] Consider the following statements : 1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed. 2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves. 3. The Constitution of India defines Civil Contempt and Criminal Contempt. 4. In India, the Parliament is vested with the powers to make laws on Contempt of Court. Which of the statements given above is/are correct ?4 (a) 1 and 2 only (b) 1, 2 and 4 (c) 3 and 4 only (d) 3 only Answer: B”