Who Decides Before Anything Is Decided: The Supreme Court's Architecture Problem

A Court That Split Over Who Should Decide On September 23, the

challenge to the law on appointing India's election commissioners did not fail and did not succeed. It stopped. Justices Dipankar Datta and Satish Chandra Sharma split over whether two judges may decide it at all and they sent the papers to the Chief Justice of India.

What the

dispute is really about The CEC and EC Act, 2023 gives the Prime Minister, the Leader of the Opposition and a Cabinet Minister chosen by the Prime Minister the power to select Commissioners. It replaced the interim panel created by the five-judge ruling in Anoop Baranwal (2023), which had placed the CJI as the third member.

Midway through hearings, the Union argued that the case raises a substantial question of constitutional interpretation. Under Article 145(3), such a question needs at least five judges. The Union had not raised this point in its counter-affidavit.

• Justice Sharma accepted it. No authoritative ruling exists on the 2023 Act, so five judges must hear it.
• Justice Datta rejected it. Baranwal already read Article 324 to require insulation from exclusive executive control. That reading binds under Article 141. All that remains is applying it to a committee where the executive holds two of three votes.

Why both sides have a point The case for five judges rests on legitimacy.

Parliament has legislated where Baranwal invited it to. A ruling on that law by two judges, in either direction, would be easy to dismiss as an accident of the roster. The case for deciding now rests on time. Commissioners appointed under the challenged law will oversee several State elections and probably a general election, before any ruling arrives. A remedy at that point changes nothing on the ground.

TAN's position Justice Datta read Article 145(3) correctly.

The provision asks whether a real interpretive question arises, not whether a statute is new or important. Two-judge Benches decided Shreya Singhal (2015) and NALSA (2014). A novelty test would have barred both. The split, however, points to a structural problem.

The Court now sits mostly in two-judge panels. A Constitution Bench forms only when the CJI can spare five judges. Baranwal took eight years from filing to judgment. TAN therefore backs a permanent Constitution Bench, as the Law Commission proposed in 2009.

Two conditions apply:

• It must be composed by published rules settled in advance, not chosen case by case by the Master of the Roster.
• Every Article 145(3) reference must be listed within a fixed time. No constitutional amendment is needed. What is needed is for the CJI to accept that the power to decide who sits on a Bench is too consequential to remain discretionary.