A Court divided by its own architecture

Indian Polity & Governance · 4 October 2026 · Based on The Hindu (original report)

2-minute summary

A recent split verdict by a two-judge Bench of the Supreme Court of India concerning the validity of the Chief Election Commissioner and other Election Commissioners Act, 2023, has reignited a debate over the Court's internal architecture. The judges disagreed not on the merits of the challenge, but on whether a two-judge Bench was competent to hear the matter under Article 145(3), which mandates a minimum of five judges for cases involving substantial questions of constitutional interpretation. While one judge held that the challenge merely required applying established principles from the 2023 Anoop Baranwal judgment, the other argued that the lack of prior authoritative pronouncement on the new statute necessitated a Constitution Bench. This procedural deadlock highlights a deeper institutional fault: the Supreme Court functions predominantly as a regular court of appeal rather than as a dedicated constitutional court. Legal analysts argue that this architecture causes immense backlog, delays constitutional adjudication, and leads to contradictory rulings by coordinate Benches, necessitating structural reforms such as establishing a National Court of Appeal or dedicated regional constitutional benches.

Why it's in the news

A two-judge Bench of the Supreme Court delivered a split verdict in September 2026 on whether a challenge to the Chief Election Commissioner and other Election Commissioners Act, 2023, required a five-judge Constitution Bench, exposing procedural fractures and reigniting debates on the Court's structural design.

Facts to remember

• Article 145(3) of the Constitution mandates a minimum of five judges for cases involving a substantial question of constitutional interpretation.
• The Chief Election Commissioner and other Election Commissioners Act was enacted in December 2023.
• The 2023 Anoop Baranwal vs Union of India judgment established an interim appointment committee comprising the Prime Minister, Leader of the Opposition, and the Chief Justice of India.
• State of Jammu and Kashmir vs Thakur Ganga Singh (1959) and PUCL vs Union of India (2003) laid down foundational interpretations of Article 145(3).

Background and context

The Supreme Court of India inherited a appellate jurisdiction from the Federal Court of India under the Government of India Act, 1935, combined with expansive writ jurisdiction under Article 32. Over the decades, the abolition of intermediate appellate tiers and the liberal admission of special leave petitions under Article 136 transformed the Supreme Court into a busy court of appeal. Law Commission reports, notably the 229th Report, have repeatedly noted that the Court spends most of its time correcting ordinary errors in individual cases rather than resolving vital constitutional questions. Landmark suggestions to cure this structural malaise include establishing a National Court of Appeal to handle civil and criminal appeals, leaving the Supreme Court exclusively to constitutional matters.

Constitutional provisions

• Article 145(3) — Prescribes that cases involving a substantial question of law as to the interpretation of the Constitution must be heard by a Bench of at least five judges.
• Article 324 — Deals with the superintendence, direction, and control of elections vested in the Election Commission, forming the bedrock for judicial scrutiny of election commission appointments.
• Article 141 — States that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

Committees and reports

• Law Commission of India (229th Report) — Recommended the creation of a National Court of Appeal to reduce the Supreme Court's burden as an ordinary appellate court.

Mains practice: Critically examine the institutional challenges facing the Supreme Court of India due to its heavy appellate workload and discuss the structural reforms needed to enhance its role as a constitutional court.

The Supreme Court of India, designed primarily as a constitutional court, has increasingly functioned as an ordinary court of appeal due to expansive special leave petition jurisdictions under Article 136. Recent split verdicts on bench competence under Article 145(3) underscore deep structural fractures in its internal architecture.

• Jurisdictional Overload and Appellate Burden: With pendency crossing tens of thousands of cases, the Court spends significant judicial hours on factual disputes rather than vital questions of law, diluting its core constitutional mandate.

• Bench Fragmentation and Inconsistency: Operating in numerous small Benches (two or three judges) leads to conflicting interpretations of coordinate precedents, undermining the rule of law and certainty.

• Constitutional Interpretation Bottlenecks: Misapplications or divergent views on Article 145(3) — which mandates a minimum of five judges for substantial questions of constitutional interpretation — often trigger procedural delays rather than substantive adjudication.

• Reform Imperatives: Recommendations from bodies like the Law Commission in its 229th Report highlight the necessity of institutional reorganization to separate appellate jurisdiction from constitutional review.

Way Forward:

• Establish a National Court of Appeal (NCA) in regional hubs to adjudicate routine civil and criminal appeals, freeing the Supreme Court to focus exclusively on constitutional jurisprudence.

• Institutionalize permanent Constitution Benches to ensure continuous and consistent interpretation of fundamental laws.

• Rationalize the exercise of Article 136 by setting strict criteria for entertaining special leave petitions.

Conclusion:

Transforming the Supreme Court from an overburdened appellate forum into a pristine constitutional court is vital for upholding constitutionalism, ensuring judicial consistency, and fulfilling the promise of timely justice under Article 21.

Prelims practice questions

Q1. Consider the following statements regarding the constitutional provisions and procedures governing the Supreme Court of India: 1. Article 145(3) explicitly prescribes that any case involving a substantial question of constitutional interpretation must be decided by a Bench of not less than five judges. 2. The Constitution of India contains detailed statutory rules defining the exact conditions under which a case must be referred to a Constitution Bench without requiring judicial discretion. 3. A difference of opinion between two judges on a Bench must always be referred to a Constitution Bench of five judges directly, bypassing three-judge Benches.

1. Only one
2. Only two
3. All three
4. None

Answer: A. Statement 1 is correct because Article 145(3) mandates a minimum of five judges for substantial questions of constitutional interpretation. Statement 2 is incorrect because the Constitution does not lay down exhaustive statutory rigidity for every referral nuance, leaving room for judicial interpretation as seen in precedents like Thakur Ganga Singh and PUCL cases. Statement 3 is incorrect because a difference of opinion on a two-judge Bench is ordinarily resolved by a Bench of three judges, not directly pushed to a five-judge Constitution Bench unless a constitutional question under Article 145(3) arises.

Q2. Which one of the following institutional reforms has been frequently proposed by legal experts and the Law Commission of India to address the Supreme Court's high pendency and structural backlog?

1. Transferring all civil appeals exclusively to administrative tribunals
2. Abolishing the writ jurisdiction of High Courts under Article 226
3. Establishing a National Court of Appeal to handle routine appellate matters
4. Restricting the retirement age of Supreme Court judges to sixty years

Answer: C. The Law Commission in its 229th Report and various legal scholars have recommended establishing a National Court of Appeal (NCA) in regional hubs to deal with routine civil and criminal appeals, allowing the Supreme Court to function purely as a constitutional court. The other options are either constitutionally unsound, factually incorrect, or violate basic separation of powers principles.

Q3. With reference to the functioning of the Supreme Court of India, what is the primary consequence of its transformation from a constitutional court into a predominant court of appeal?

1. Increased backlog, procedural delays, and conflicting rulings by coordinate Benches
2. Automatic conversion of all petitions into Public Interest Litigations
3. Enhancement of executive dominance in judicial appointments
4. Restriction of the original jurisdiction of the Supreme Court under Article 32

Answer: A. When the Supreme Court functions primarily as an appellate court admitting numerous special leave petitions, it faces severe pendency, frequent delays in constitutional matters, and risks conflicting precedents among small two-judge or three-judge Benches. The other options do not logically follow from its appellate burden.

Revision flashcards

• What does Article 145(3) of the Indian Constitution mandate regarding bench strength? It mandates that cases involving a substantial question of law as to the interpretation of the Constitution must be heard by a Bench of at least five judges.
• Which statutory body recommended the establishment of a National Court of Appeal in its 229th Report? The Law Commission of India (in 2009).
• What procedural issue arose in the Supreme Court case concerning the Election Commissioners Act in September 2026? A two-judge Bench delivered a split verdict on whether a challenge to the statute required a five-judge Constitution Bench under Article 145(3).
• What structural critique is frequently leveled against the Supreme Court of India's current docket? It operates predominantly as a routine court of appeal rather than a dedicated constitutional court, leading to massive backlogs and bench inconsistencies.
• Why does the Supreme Court's appellate workload hinder its constitutional role? Because entertaining vast numbers of routine appeals under Article 136 diverts judicial time away from definitive constitutional adjudication.