Current Affairs · · GS2 · Polity

Split verdict on CEC law puts Supreme Court's bench structure in focus

On 23 September 2026, a two-judge Supreme Court Bench split on whether challenges to the 2023 law on appointing Election Commissioners need a Constitution Bench. Justice Datta said no and Justice Sharma said yes, but both sent the papers to the Chief Justice of India. The Bench also urged a permanent five-judge Bench for constitutional questions.

Event date:

REq1
  1. Context1 / 5
    • On 23 September 2026, a Bench of Justices Dipankar Datta and Satish Chandra Sharma delivered a split verdict on petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
    • The split was on a preliminary question: whether the challenge must go to a larger Constitution Bench. The merits were not decided.
    • The 2023 Act replaced the Chief Justice of India (CJI) with a Union Cabinet Minister, nominated by the Prime Minister, on the committee that selects Election Commissioners. The committee now has the Prime Minister, the Leader of the Opposition in the Lok Sabha and that Minister.
    • The Union sought a reference to a larger Bench. The petitioners opposed it as a delaying tactic.
    • Both judges directed that the papers go to the CJI, to constitute a Constitution Bench of appropriate strength.
  2. Key highlights2 / 5

    The two judges took opposite views on the reference question.

    • Justice Datta rejected a reference. The principle of an independent selection process was settled in Anoop Baranwal (2023), and a new law does not make it a fresh question. He found no bar to this Bench hearing the petitions, and said his observations were prima facie and confined to the reference question.
    • Justice Sharma favoured a reference. The challenge raises a substantial question of constitutional interpretation that no earlier judgment has settled.

    Background. In Anoop Baranwal v. Union of India, decided on 2 March 2023, a Constitution Bench directed that appointments be made on the advice of the Prime Minister, the Leader of the Opposition and the CJI, until Parliament enacted a law. Parliament passed the 2023 Act in December 2023.

    The challenge. The petitions target Sections 7 and 8 of the Act. In March 2024, the Court declined to stay it.

    The delay concern. The same judges asked the CJI to explore a permanent five-judge Bench for pure constitutional issues. They called long delays in larger-Bench references an "institutional embarrassment".

    This card sets out documented positions. It does not adjudicate between them.

  3. Key concepts3 / 5

    1. What does Article 145(3) require?

    A case involving a substantial question of law on the interpretation of the Constitution must be heard by at least five judges. The dispute here was whether this challenge raises a new question of interpretation, or only applies a settled principle to a new law.

    2. What is the force of Article 141?

    The law declared by the Supreme Court is binding on all courts in India. Lower benches follow it, much as every vehicle on a road must obey the same signpost. A larger bench can change it; a two-judge Bench cannot.

    3. Why does the CJI matter here?

    Benches are constituted by the CJI, as "master of the roster". A split between two judges ordinarily calls for a third judge, but here the Bench itself sent the matter to the CJI for a larger Bench.

    4. What are Articles 136 and 130?

    Article 136 lets the Supreme Court grant special leave to appeal from almost any court or tribunal, which feeds a large appellate load. Article 130 says the Court sits in Delhi, or at other places the CJI appoints with the President's approval.

  4. Note4 / 5

    Court architecture, delay and reform proposals

    Pendency. In a July 2023 reply in the Lok Sabha, the government said 29 main Constitution Bench cases were pending as on 20 July 2023: 18 before five judges, six before seven and five before nine. The oldest was registered in 1992. By more recent accounts the figure is still about 29, with average pendency above eight years.

    Mix of work. Heavy appellate work competes with constitutional hearings for judge time, and small benches can produce differing readings that later need larger-bench references.

    The main reform proposals:

    • 95th Law Commission Report, 1984. Split the Court into a Constitutional Court at Delhi and a court of appeal sitting in regions.
    • 229th Law Commission Report, 2009. A Constitution Bench at Delhi plus four Cassation Benches, at Delhi, Chennai or Hyderabad, Kolkata and Mumbai. Article 130 can be read to allow this without an amendment.
    • Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, August 2023. Regional benches at four or five places under Article 130, with appellate matters in the regions and constitutional matters at Delhi.
    • Justices Datta and Sharma, September 2026. The CJI to explore a permanent five-judge Bench for pure constitutional questions.

    Regional benches. The government accepted the committee's view in its 2024 action-taken report, but the committee pointed out that the Supreme Court has consistently rejected benches outside Delhi.

  5. Way forward5 / 5

    These are suggested measures, not approved policy.

    • Clear criteria for references. Set objective guidelines under Article 145(3) to separate a new question of interpretation from the application of a settled principle.
    • Time-bound larger Benches. Adopt a permanent Constitution Bench, and listing timelines so that references do not wait for years.
    • Reduce the appellate load. Apply stronger scrutiny at the admission stage to special leave petitions, so that more judge time goes to constitutional questions.
    • Widen access. Examine regional benches under Article 130 for appellate work.

Sources

Syllabus

PaperSubjectSub-topic
GS2PolityStructure, organisation and functioning of the Judiciary; appointments to constitutional posts and the functions of constitutional bodies
PrelimsPolitySupreme Court; Election Commission of India; Articles 130, 136, 141 and 145(3)

Topics

Basic Concepts of ConstitutionConstitutional BodiesHigher Judiciary (SC and HC)Judicial Review

Related previous-year questions

Asked in earlier UPSC Prelims papers on this topic. Answer, then check.

  1. UPSC Prelims 2021 · Polity · Higher Judiciary (SC and HC)

    With reference to Indian judiciary, consider the following statements: 1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the President of India. 2. A High Court in India has the power to review its own judgement as the Supreme Court does. Which of the statements given above is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2 only
    4. Neither 1 nor 2
    Show answer

    Answer: C. Statement 1 – CORRECT: Article 128: Chief Justice of India may at any time, with the previous consent of the president, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. Thus, statement 1 is correct. Statement 2 – CORRECT: Article 215: Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. As a court of record, a High Court in India has the power to review its own judgement (Pottakalathil Ramakrishnan v. Thahsildar, Tirur & ors.). Thus, statement 2 is also correct. Correct statements: Both 1 and 2 → Option (c).

    Difficulty: medium · statement

    Open this question on its own page, with the full explanation →

  2. UPSC Prelims 2019 · Polity · Higher Judiciary (SC and HC)

    With reference to the Constitution of India, prohibition or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

    1. The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.
    2. The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.
    3. In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
    4. State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.
    Show answer

    Answer: B. Article 142 states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. In the Union Carbide case relating to the victims of the Bhopal gas tragedy, the Supreme Court while awarding compensation went to the extent of saying that to do complete justice, it could even override the laws made by Parliament by holding that 'prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.' By this statement the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States. Hence the Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament. Correct answer: The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament → Option (b).

    Difficulty: medium · direct

    Open this question on its own page, with the full explanation →

  3. UPSC Prelims 2014 · Polity · Higher Judiciary (SC and HC)

    The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its

    1. advisory jurisdiction
    2. appellate jurisdiction
    3. original jurisdiction
    4. writ jurisdiction
    Show answer

    Answer: C. VERDICT: The answer is original jurisdiction. Disputes between the Centre and the States go directly to the Supreme Court under Article 131. ANALYSIS: Original jurisdiction means a case may be filed in the Supreme Court in the first instance, and Article 131 reserves federal disputes, between the Union and one or more States or between States, for exactly that treatment. Appellate jurisdiction is wrong because it concerns appeals from High Courts and requires a prior decision below. Advisory jurisdiction is wrong because Article 143 covers references made by the President for an opinion, which is not binding adjudication. Writ jurisdiction under Article 32 concerns enforcement of fundamental rights, which is a different head altogether. SOURCE: M. Laxmikanth, Indian Polity. Source type EM. HOW TO CRACK IT: The four jurisdictions of the Supreme Court are separated by who can bring the matter and at what stage. Original means first instance and federal disputes under Article 131, writ means fundamental rights under Article 32, appellate means from the courts below, advisory means a presidential reference under Article 143. Attach one article number to each head and this entire question family reduces to a single recall. Note that Article 32 is also technically original, so read the option set for the more specific label.

    Difficulty: easy · direct

    Open this question on its own page, with the full explanation →

Practice questions

  1. Consider the following statements: 1. Under Article 145(3), a case involving a substantial question of law on the interpretation of the Constitution must be heard by at least five judges. 2. Under Article 141, the law declared by the Supreme Court is binding on all courts in India. 3. Under Article 130, the Supreme Court can sit only in Delhi. Which of the statements given above are correct?

    1. 1 and 2 only
    2. 1 and 3 only
    3. 2 and 3 only
    4. 1, 2 and 3
    Show answer

    Answer: A. Statements 1 and 2 are correct. Statement 3 is wrong, because Article 130 provides that the Supreme Court shall sit in Delhi or at such other place or places as the Chief Justice of India may, with the approval of the President, appoint. That is precisely the provision reform proposals rely on for regional benches.

    Difficulty: medium · statement

  2. With reference to Anoop Baranwal v. Union of India (2023), consider the following statements: 1. It was decided by a Constitution Bench. 2. It directed that, until Parliament made a law, Election Commissioners be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. 3. It declared that the Chief Justice of India must permanently sit on the selection committee whatever Parliament legislates. Which of the statements given above are correct?

    1. 1 and 3 only
    2. 1 and 2 only
    3. 2 and 3 only
    4. 1, 2 and 3
    Show answer

    Answer: B. Statements 1 and 2 are correct. Statement 3 is wrong, because the arrangement was expressly meant to hold only until Parliament enacted a law on the subject. Parliament then passed the 2023 Act, which replaced the Chief Justice of India on the committee with a Union Cabinet Minister, and it is that change the present petitions challenge.

    Difficulty: medium · statement

  3. Consider the following statements about proposals for restructuring the Supreme Court: 1. The 229th Law Commission Report proposed abolishing Article 136. 2. Article 130 allows the Court to sit at places other than Delhi, with the decision of the Chief Justice of India and the approval of the President. 3. A 2023 Parliamentary Standing Committee recommended regional benches using Article 130. Which of the statements given above are correct?

    1. 1 and 2 only
    2. 2 and 3 only
    3. 1 and 3 only
    4. 1, 2 and 3
    Show answer

    Answer: B. Statements 2 and 3 are correct. Statement 1 is wrong, because the 229th Report proposed a Constitution Bench at Delhi together with four Cassation Benches in the regions, and took the view that Article 130 permits this without a constitutional amendment. It did not propose abolishing the special leave jurisdiction under Article 136.

    Difficulty: hard · statement

Mains practice

Answer-writing practice on this article. Attempt it first, then open the hints.

  1. GS2 · 250 words

    The structure of the Supreme Court may affect its role as final interpreter of the Constitution. Critically examine and suggest reforms.

    Show hints
    1. Explain how a Court sitting mostly in small benches generates divergent readings that then require references to larger benches.
    2. Use the pendency data: 29 main Constitution Bench cases as on 20 July 2023, split 18 before five judges, six before seven and five before nine, with the oldest registered in 1992.
    3. Show how the wide appellate jurisdiction under Article 136 draws judge time away from constitutional hearings.
    4. Set out the reform proposals, from the 95th and 229th Law Commission Reports to the 2023 Standing Committee and the September 2026 suggestion of a permanent five-judge Bench.
    5. Weigh the counter-argument: the Supreme Court has consistently resisted benches outside Delhi, on grounds of the Court remaining a single institution.
  2. GS2 · 250 words

    Discuss the significance of Articles 141 and 145(3) in keeping constitutional adjudication consistent, with reference to the recent split verdict on the CEC appointment law.

    Show hints
    1. Explain Article 141 as the provision that makes a Supreme Court declaration binding precedent, and why only a larger bench can unsettle what a smaller one has declared.
    2. Explain the Article 145(3) threshold of a substantial question of constitutional interpretation, and the five-judge minimum it triggers.
    3. Use the split to show how hard that threshold is to apply: one judge saw a settled principle being applied to a new law, the other a question not yet settled.
    4. Bring in the role of the Chief Justice of India as master of the roster, and why the Bench sent the papers there rather than to a third judge.
    5. Conclude on the cost of delay in references, and on objective criteria and a permanent Constitution Bench as answers to it.