A Court divided by its own Architecture
Why in news?
Two-judge SC Bench splits on whether it can hear challenges to 2023 Election Commissioners Act and the matter has been sent to CJI.
UPSC Relevance
- Prelims: Article 145(3), Article 141, Article 130, Article 136, Article 324, Master of the Roster, stare decisis.
- Mains GS-II: Structure, organisation and functioning of the Judiciary; dispute redressal mechanisms and institutions; separation of powers; statutory and constitutional bodies (Election Commission).
Recent delays on constitutional matters in SC
On 23 September, a two-judge Bench gave a split verdict on petitions challenging the CEC and other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023. Instead of sending the matter to a third judge, which is the usual practice, both judges placed the papers before the CJI and asked him to consider forming a Constitution Bench [under Article 145(3)]. Petitioners who came to court in early 2024 now have to wait again, delaying such important constitutional matters further.
The Architecture of Supreme Court entails multiple roles.
| Role | Primary Objective | Key Constitutional Provisions |
| Constitutional Court | Interpreting the Constitution, settling federal disputes, and determining the validity of laws | Article 131: Original Jurisdiction (State vs. Union, State vs. State) Article 132: Appellate Jurisdiction in constitutional interpretation matters Article 143: Advisory Jurisdiction (Presidential reference) Article 145(3): Requirement of minimum 5 judges for substantial questions of law |
| Rights Court | Protecting and enforcing fundamental rights guaranteed under Part III | Article 32: Right to Constitutional Remedies (Original Jurisdiction) Article 142: Power to pass any decree necessary for “complete justice” |
| Appellate Court | Acting as the final court of appeal for general civil, criminal, and statutory disputes | Article 133: Civil Appeals (requires High Court certificate) Article 134: Criminal Appeals Article 136: Special Leave Petition (SLP) — discretionary jurisdiction Statutory Provisions: The Direct appeals under specialized tribunal acts (NCLAT, TRAI, NGT) are also made to the Supreme Court. |
Problem – a constitutional court that became a court of appeal
- India’s Supreme Court tries to be all : appeals court, rights court and constitutional court.
- More judges, more small Benches: Higher strength (now 38) helped clear routine matters but did not create more Constitution Benches. The Court became many Benches, each speaking in its own voice .
- Article 136 became routine: The Court itself said in Pritam Singh v. State (1950) that special leave under Article 136 is to be used sparingly, in exceptional cases. In practice it works as a general second or third appeal.
- No time limit on constituting benches: References wait years because five judges have to be pulled out of regular work. There is no fixed time limit for listing them.
- Centralisation with Master of the Roster: The CJI decides which judges sit on which Bench and what they hear (State of Rajasthan v. Prakash Chand, 1998; Shanti Bhushan v. Supreme Court, 2018). It sounds administrative, but it can shape outcomes. This is what the four senior judges flagged in their press conference in January 2018.
- Global Comparison: The US Supreme Court picks only a small number of cases each year (roughly 60 to 70) and sits as a full court. Germany has a separate Federal Constitutional Court.
Impact on Justice delivery
- Weakened Judicial Review: : A court occupied with routine statutory appeals loses its agility as a constitutional watchdog. By the time the 2023 Act is decided, Commissioners appointed under it may have run many State elections one general election. Similarly, the electoral bond scheme (2018) was struck down only in February 2024, after it had operated through elections. The judges themselves called such delay an ‘institutional embarrassment’.
- Delayed Rights Realization: When judges spend the majority of their bandwidth on routine statutory appeals (such as property or tax disputes), constitutional matters—like fundamental rights petitions. Ordinary citizens seeking protection of basic rights are often priced out or delayed by wealthy corporations and well-funded litigants occupying the court’s calendar.
- Conflicting Jurisprudence: Different benches often issue contradictory rulings on similar legal questions. Instead of creating unified, binding precedents for the nation, the court runs the risk of creating fragmented jurisprudence driven by bench composition.
- Geographical and Financial Barriers: Litigants with deep pockets use the apex court as a “second appeal” mechanism to prolong litigation while those lacking it remain disadvantaged.
- Case Backlogs: Operating as a routine appellate body leads to increase in pendency in SC.
Way ahead
- The Supreme Court itself suggested establishing a National Court of Appeal to handle ordinary appellate cases.
- Form a permanent Constitution Bench through a published, rule-based process, and set time limits for listing Constitution Bench references and regional benches under Article 130. (Law Commission)
- Tighten filters of special leave petitions: clear criteria, quick dismissal of weak ones, and costs on frivolous litigation.
- Frame clear tests for what is a ‘substantial question of law’ under Article 145(3), so that judges do not keep disagreeing on the threshold.
- Fill vacancies in High Courts and the Supreme Court, and use retired judges (Article 128) for pendency where needed.
A Court that exists mainly to hear appeals cannot guard the Constitution quickly. The structure must change so that the biggest questions get decided on time, not after the facts have settled.
Practice MCQ
Q1. With reference to the Supreme Court of India, consider the following statements:
1. Article 145(3) requires a minimum of five judges for a case involving a substantial question of law on the interpretation of the Constitution.
2. A minimum of five judges is also required to hear a Presidential reference under Article 143.
3. A two-judge Bench can overrule a decision of a five-judge Bench.
Which of the statements given above are correct?
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
Answer: (b). Statement 3 is wrong; a smaller Bench is bound by a larger Bench and can only refer the matter to a larger Bench.
Q2. Consider the following statements:
1. A Special Leave Petition under Article 136 can be filed as a matter of right against any High Court judgment.
2. Article 130 allows the Supreme Court to sit at places other than Delhi, as decided by the CJI with the approval of the President.
3. Under Article 141, law declared by the Supreme Court is binding on all courts in India.
Which of the statements given above are correct?
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 and 3 only
(d) 1, 2 and 3
Answer: (c). Statement 1 is wrong; special leave is a discretionary power of the Court, not a right.
Mains Practice Question
The Supreme Court of India today functions more as a court of appeal than as a constitutional court. Examine the reasons for this and its consequences for constitutional adjudication. Suggest structural reforms. (250 words, 15 marks)