Op-ed: Split verdict on the Election Commissioners Act exposes how the Supreme Court sits
Two judges could not agree on who should even hear the case. What does that say about how India's top court is built?
Published 3 October 2026. Written by Pratidin from the reports linked at the end; every fact checked by a separate review before publishing. How we work
A two-judge bench of the Supreme Court, Justices Dipankar Datta and Satish Chandra Sharma, has delivered a split verdict in 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 whether the law is valid but on whether a bench of two could decide that at all. Article 145(3) of the Constitution requires a bench of at least five judges for any case involving a substantial question of law as to the interpretation of the Constitution. Justice Datta read this as applying where there are genuinely differing interpretations of a constitutional provision, not to every challenge to a new statute. Justice Sharma held that, with no authoritative precedent on the 2023 Act, a Constitution Bench should hear it. The judges jointly referred the matter to the Chief Justice of India to consider setting up a Constitution Bench.
The 2023 Act followed Anoop Baranwal v Union of India (March 2023), in which the Supreme Court held that, until Parliament made a law, the Chief Election Commissioner (CEC) and Election Commissioners would be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. Before that ruling, the President appointed them on the recommendation of the Prime Minister. The 2023 Act kept the Prime Minister and the Leader of the Opposition but replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister. Critics say this gives the government a two-to-one majority in choosing the officials who run elections; supporters of the law say Parliament has simply made the law that the Court's interim arrangement was waiting for.
The article, published in The Hindu on 3 October 2026, argues that the split is a symptom of the Court's design. It says heavy reliance on two-judge benches produces inconsistent rulings; that long delays can make decisions stale, noting that the Anoop Baranwal case took eight years; and that the Chief Justice's power as Master of the Roster needs transparent, pre-settled rules for composing benches. It recalls that the Law Commission's 229th Report (2009) proposed a permanent Constitution Bench in Delhi, with regional benches to hear ordinary appeals. In 2018, ruling on a petition by former law minister Shanti Bhushan, the Court held that the Chief Justice is the Master of the Roster; defenders of the present system also cite the flexibility that small benches give a court with a very large caseload.
Prelims facts
- Justices Dipankar Datta and Satish Chandra Sharma split on whether a Constitution Bench must hear the challenge to the CEC and other Election Commissioners Act, 2023, and jointly referred the matter to the Chief Justice of India.
- Article 145(3) requires at least five judges to decide a case involving a substantial question of law as to the interpretation of the Constitution.
- In Anoop Baranwal v Union of India (March 2023), the Supreme Court set an interim selection committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India.
- The 2023 Act's selection committee is the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
- The Law Commission's 229th Report (2009) proposed a permanent Constitution Bench in Delhi with regional benches for ordinary appeals.
Quick recall
- Which two judges split over the challenge to the 2023 Election Commissioners Act?
- Justices Dipankar Datta and Satish Chandra Sharma.
- What did the two judges jointly do after splitting?
- Referred the matter to the Chief Justice of India to consider setting up a Constitution Bench.
- What does Article 145(3) require?
- At least five judges for a case involving a substantial question of law as to the interpretation of the Constitution, or a reference under Article 143.
- Selection committee under Anoop Baranwal (2023)?
- The Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India, until Parliament made a law.
- Selection committee under the 2023 Act?
- The Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
- Which Article of the Constitution is the source of the Election Commission's powers?
- Article 324.
- Which Law Commission report proposed a permanent Constitution Bench in Delhi?
- The 229th Report (2009), with regional benches for ordinary appeals.
- Which 2018 case upheld the Chief Justice as Master of the Roster?
- Shanti Bhushan v Supreme Court of India.
Prelims practice question
Consider the following statements:
1. Article 145(3) of the Constitution requires at least five judges to decide a case involving a substantial question of law as to the interpretation of the Constitution.
2. Under the Chief Election Commissioner and other Election Commissioners Act, 2023, the Chief Justice of India is a member of the selection committee.
3. Before March 2023, Election Commissioners were appointed by the President on the recommendation of the Prime Minister.
Which of the statements given above are correct?
- 1 and 2 only
- 2 and 3 only
- 1 and 3 only
- 1, 2 and 3
Show answer
Answer: (c) 1 and 3 only. Statement 1 is correct. Statement 2 is wrong: the 2023 Act's committee is the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister; the Chief Justice was on the interim committee set by Anoop Baranwal. Statement 3 is correct: that was the practice until the Anoop Baranwal ruling of March 2023.
Use this in UPSC Mains: previous-year questions
Recurring theme: Independence of constitutional bodies and the structure and functioning of the Supreme Court
"Constitutionally guaranteed judicial independence is a prerequisite of democracy". Comment.
How to use thisUse it to show that independence depends on who appoints key constitutional officials and on how the Supreme Court organises itself, both under strain in the CEC Act challenge.
- Anoop Baranwal v Union of India (March 2023) put the CJI on the interim panel appointing the CEC and ECs; the 2023 Act replaced the CJI with a PM-nominated Union Cabinet Minister.
- Critics say this gives the government a two-to-one majority in choosing those who run elections; supporters say Parliament simply made the law the Court's interim arrangement awaited.
- The op-ed argues the Chief Justice's power as Master of the Roster, upheld in the 2018 Shanti Bhushan case, needs transparent, pre-settled rules for composing benches.
- How to use this
Use the dispute over the selection committee for Election Commissioners as a recent experience of the contest over keeping a key institution autonomous from the executive.
- The 2023 Act's selection committee is the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, replacing the CJI set by Anoop Baranwal.
- A two-judge bench (Justices Dipankar Datta and Satish Chandra Sharma) split on whether Article 145(3) requires a five-judge bench, and referred the question to the CJI.
- The op-ed notes Anoop Baranwal took eight years and warns delay can make decisions stale; it cites the Law Commission's 229th Report (2009) proposing a permanent Constitution Bench.
Tests basic facts about the Election Commission's structure; the 2023 Act and Anoop Baranwal are the current context for its composition.
Mains practice question
The split verdict on whether a Constitution Bench must hear the challenge to the Election Commissioners Act, 2023 has revived the debate on how the Supreme Court is organised. Examine the case for a permanent Constitution Bench in India. (250 words)
Model answer
A two-judge bench of the Supreme Court recently split on whether a challenge to the Chief Election Commissioner and other Election Commissioners Act, 2023 must go to a Constitution Bench under Article 145(3), and referred the question to the Chief Justice of India. The episode shows how the Court's structure shapes its outcomes.
Why the present design strains
- Two-judge benches dominate: the Court sits mostly in small benches, so rulings on similar questions can conflict.
- Delay: Anoop Baranwal took eight years; the op-ed warns such delay can make decisions moot.
- Master of the Roster: the op-ed says the Chief Justice's power to compose benches needs transparent, pre-settled rules; Shanti Bhushan v Supreme Court of India (2018) upheld the power itself.
- Article 145(3) unclear: judges can differ on when a five-judge bench is needed.
The case for a permanent Constitution Bench
- Consistency: a standing bench would settle constitutional questions with authority.
- Speed: important matters such as the 2023 Act would not wait for ad hoc benches.
- Law Commission support: the 229th Report (2009) proposed a permanent Constitution Bench in Delhi with regional benches for ordinary appeals.
Concerns
- Regional benches could dilute the Court's unity and raise forum shopping.
- A fixed bench may concentrate power in a few judges.
- Small benches give flexibility for a very large caseload.
Way forward
- Publish roster and listing criteria.
- Refer substantial constitutional questions to five-judge benches early.
Conclusion
The split verdict is less about one law than about a Court whose architecture needs to match its constitutional role.
The basics
Why this matters
The Election Commission conducts every election in India, and who appoints its members is a question about the fairness of democracy itself. A recent split verdict adds a second question: how the Supreme Court decides which judges hear such cases. Both are core GS2 themes.
How Election Commissioners are chosen
The Election Commission draws its powers from Article 324. The President appoints the CEC and Election Commissioners, and until 2023 did so on the recommendation of the Prime Minister. Anoop Baranwal v Union of India filled the gap; Parliament then passed the Chief Election Commissioner and other Election Commissioners Act, 2023.
- Prime Minister
- Leader of the Opposition in the Lok Sabha
- Chief Justice of India
- Prime Minister
- Leader of the Opposition in the Lok Sabha
- Union Cabinet Minister nominated by the Prime Minister
The bench question
Under Article 145(3) and Constitution Benches, a case involving a substantial question of law on interpreting the Constitution needs at least five judges.
What happened, step by step
- 1ChallengePetitions challenge the 2023 Act, which dropped the Chief Justice from the selection committee
- 2Two-judge hearingJustices Dipankar Datta and Satish Chandra Sharma hear the case
- 3SplitJustice Datta: Article 145(3) is not triggered by every challenge to a new statute. Justice Sharma: with no precedent on the Act, a Constitution Bench should hear it
- 4ReferenceBoth judges send the matter to the Chief Justice of India to consider a Constitution Bench
The bigger design problem
The Chief Justice decides which judges hear which case as the Master of the Roster. The op-ed argues that heavy use of two-judge benches causes inconsistency and delay, and that the roster power needs transparent, pre-settled rules. The Law Commission's 229th Report (2009) proposed a permanent Constitution Bench in Delhi with regional benches for ordinary appeals.
The takeaway
The merits of the 2023 Act are still undecided. What the split has settled is that the Court's own structure is now part of the debate.
Go deeper
In one line: Two Supreme Court judges split on whether a Constitution Bench must hear the challenge to the 2023 law on appointing Election Commissioners, and a Hindu op-ed says the split reflects flaws in how the Court is organised.
Why it matters for UPSC
The appointment of Election Commissioners, the independence of constitutional bodies and the functioning of the judiciary are all in GS2. Prelims tests Articles 145(3) and 324.
The core idea
Anoop Baranwal v Union of India put the Chief Justice on an interim selection committee. The Chief Election Commissioner and other Election Commissioners Act, 2023 replaced the Chief Justice with a Cabinet Minister. The challenge to the Act raised a prior question under Article 145(3) and Constitution Benches, on which the two judges disagreed. The op-ed blames the Court's architecture, including the lack of transparent, pre-settled rules for the Master of the Roster.
Numbers and dates to remember
- Article 145(3): at least five judges for substantial questions of constitutional interpretation
- Article 324: the source of the Election Commission's powers
- Anoop Baranwal: decided in 2023, after eight years
- 2023 Act committee: PM, Leader of the Opposition, a Union Cabinet Minister
- Law Commission 229th Report: 2009
Where to go next
- Article 145(3) and Constitution Benches: when five or more judges must sit
- Anoop Baranwal v Union of India: the judgment that set the interim committee
- Chief Election Commissioner and other Election Commissioners Act, 2023: the law under challenge
- Master of the Roster: who decides which judges hear a case
Go deeper: Should India have a permanent Constitution Bench?
For. The op-ed argues that the Court's reliance on two-judge benches produces inconsistent law and that delay can make rulings stale; Anoop Baranwal v Union of India took eight years. A standing Constitution Bench would decide questions under Article 145(3) and Constitution Benches quickly and with authority. The Law Commission's 229th Report (2009) proposed exactly this: a Constitution Bench in Delhi and regional benches to hear ordinary appeals.
Against. Regional benches could split the Court's voice and invite forum shopping. A permanent bench could concentrate constitutional power in a few judges. Small benches let a court with a very large caseload move faster on routine matters.
The roster question. In Shanti Bhushan v Supreme Court of India (2018), the Court held that the Chief Justice is the Master of the Roster, with power over the assignment of cases. The op-ed's point is that this power requires transparent, pre-settled rules for composing benches.
Why it matters for the Election Commission. The challenge to the Chief Election Commissioner and other Election Commissioners Act, 2023 goes to the heart of electoral fairness. Until a bench of the right size decides it, appointments continue under a law whose validity is unsettled.
Article 145(3) and Constitution Benches
When the Constitution requires five or more judges
In one line: Article 145(3) says that a case involving a substantial question of law as to the interpretation of the Constitution, or a presidential reference under Article 143, must be heard by at least five judges.
What a Constitution Bench is
A bench of five or more judges set up to decide such questions. The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it; such benches decided landmark cases like Kesavananda Bharati v State of Kerala.
Why it is in the news
Two judges disagreed on whether the challenge to the 2023 Election Commissioners Act raises such a question. One said a challenge to a new statute does not by itself trigger Article 145(3); the other said the lack of precedent did. They referred the matter to the Chief Justice.
Where to go next
Anoop Baranwal v Union of India
The judgment that put the Chief Justice on the selection panel
In one line: In Anoop Baranwal v Union of India (March 2023), the Supreme Court held that, until Parliament made a law, Election Commissioners would be appointed on the advice of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The problem it addressed
The case was a public interest litigation on how Election Commissioners are chosen. Until then, the President appointed them on the recommendation of the Prime Minister alone.
What followed
Parliament then passed a law that kept the Prime Minister and the Leader of the Opposition but replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister. The case itself took eight years to decide, which the op-ed cites as an example of delay.
Where to go next
Chief Election Commissioner and other Election Commissioners Act, 2023
The law whose challenge produced the split
In one line: The 2023 Act is Parliament's law on how the CEC and Election Commissioners are selected, their terms and their service conditions.
Selection
A selection committee of the Prime Minister (chairperson), the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister recommends appointments to the President.
Other terms
It replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. It equates the salary and service terms of the CEC and Election Commissioners with those of the Cabinet Secretary, where the 1991 Act had equated them with a Supreme Court judge.
Why it is contested
Critics say the government holds two of three votes. Supporters say Parliament has made the law that Anoop Baranwal's interim committee was waiting for.
Removal
The CEC can be removed only through impeachment in Parliament; other Election Commissioners can be removed by the President on the CEC's recommendation.
Where to go next
Master of the Roster
Who decides which judges hear which case
In one line: The Chief Justice of India, as Master of the Roster, decides the composition of benches and which cases go to them.
The legal position
Between November 2017 and July 2018 the Court ruled three times that the Chief Justice is the master of the roster. The third ruling, on 6 July 2018, came on a petition by former law minister Shanti Bhushan, and said the Chief Justice is empowered to lead the administration of the Court, including the assignment of cases.
The controversy
On 12 January 2018, the four most senior judges after the Chief Justice held a press conference, the first ever by Supreme Court judges, saying conventions on the composition of benches were not being followed.
Why it is in the news
The op-ed argues that the Master of the Roster power requires transparent, pre-settled rules for composing benches.
Where to go next
Prelims-style quiz
Consider the following statements about the selection of Election Commissioners:
1. Under the 2023 Act, the Prime Minister heads the selection committee.
2. Under the 2023 Act, the Chief Justice of India chairs the selection committee.
3. The Anoop Baranwal committee was to apply only until Parliament made a law.
How many of the statements given above are correct?- Only one
- Only two
- All three
- None
Show answer
Answer: (b) Only two. Statements 1 and 3 are correct. Statement 2 is wrong: the Chief Justice is not on the committee under the 2023 Act, which is headed by the Prime Minister with the Leader of the Opposition and a Union Cabinet Minister.
Consider the following statements:
Statement-I: The challenge to the 2023 Election Commissioners Act was referred to the Chief Justice of India after a two-judge bench split.
Statement-II: Article 145(3) requires every challenge to a central law to be heard by at least five judges.
Which one of the following is correct in respect of the above statements?- Both Statement-I and Statement-II are correct and Statement-II explains Statement-I
- Both Statement-I and Statement-II are correct and Statement-II does not explain Statement-I
- Statement-I is correct but Statement-II is incorrect
- Statement-I is incorrect but Statement-II is correct
Show answer
Answer: (c) Statement-I is correct but Statement-II is incorrect. Statement-I is correct. Statement-II is wrong: Article 145(3) applies to cases involving a substantial question of law as to the interpretation of the Constitution (and Article 143 references), not to every challenge to a law. That was exactly the point on which the judges differed.
Consider the following:
1. Article 324
2. Article 145(3)
3. Article 143
4. Article 50
How many of the above deal with the Supreme Court's benches or its advisory jurisdiction?- Only one
- Only two
- Only three
- All four
Show answer
Answer: (b) Only two. Article 145(3) sets the minimum bench size and Article 143 is the President's power to seek the Court's advisory opinion. Article 324 concerns the Election Commission, and Article 50 is the directive to separate the judiciary from the executive. So only two.
Consider the following statements:
1. The Chief Election Commissioner can be removed from office only through a process of impeachment in Parliament.
2. The Law Commission's 229th Report proposed regional benches of the Supreme Court for ordinary appeals.
Which of the statements given above is/are correct?- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Show answer
Answer: (c) Both 1 and 2. Both are correct. The CEC can be removed only through impeachment, needing a two-thirds majority in both Houses, while other Election Commissioners can be removed by the President on the CEC's recommendation; the 229th Report (2009) proposed a Constitution Bench in Delhi with regional benches for ordinary appeals.
In which case did the Supreme Court hold, in 2018, that the Chief Justice of India is the Master of the Roster, with power over the assignment of cases?
- Anoop Baranwal v Union of India
- Shanti Bhushan v Supreme Court of India
- L. Chandra Kumar v Union of India
- S.R. Bommai v Union of India
Show answer
Answer: (b) Shanti Bhushan v Supreme Court of India. Shanti Bhushan (2018) upheld the roster power. Anoop Baranwal (2023) concerned Election Commissioners; L. Chandra Kumar (1997) concerned tribunals; S.R. Bommai (1994) concerned President's Rule.