Split verdict, common order

What an eventful week for the Election Commission of India (ECI). A special coverage by the The Indian Express on Wednesday morning revealed dissents by two out of three ECI members who opposed the use of faulty software, expressing concern over increased centralisation of the electoral roll database. That noon, the Supreme Court referred the plea challenging the constitutionality of the ECI Appointments Act, 2023 to a Constitution Bench. 

The ‘unanimous’ reference order emerged after the Bench of Justices Dipankar Datta and S.C. Sharma delivered a ‘split opinion’ on the need for a larger bench reference. Justice Datta held that the challenge could have been heard on the basis of established principles. Justice Sharma found that the matter raised substantial questions of law. Public trust in the ECI was already under strain due the SIR exercise. Whether things will be settled in courts, in Parliament or on the street remains to be seen. Amidst this, the Bench’s decision to depart from the norm governing larger bench references calls for closer attention.

Petitioners had argued that the 2023 Act failed to ensure an independent mechanism for appointing ECI members and thus violated the Constitution Bench mandate in Anoop Baranwal v Union of India (2023). More than two years after the original challenge, the Union pushed for a larger bench reference. While Justice Sharma agreed, Justice Datta differed. 

Typically, a three-judge bench constituted by the CJI takes up the matter in the event of a split opinion. In this case, the difference was on the necessity of a Constitution Bench reference. If the three-judge bench holds that a reference is not required, it will hear the matter on merits. If found necessary, the matter will proceed to a Constitution Bench of no less than five judges as per Order 38 of the Supreme Court Rules, 2013 and Article 145(3). The Bench justified a Constitution Bench reference by noting the inevitable delay caused by this additional step. This comes as a surprise as Justice Datta has vehemently objected to the circumvention of procedure in referring matters to larger benches—the AMU Minority Status and Jai Bir Singh cases. 

This is not the first time that the Court has decided to proceed with a unanimous order despite a difference of opinion.

In January 2025, a Bench of Justices B.V. Nagarathna and Sharma disagreed over the burial of a Christian pastor in a village ground. Justice Sharma opined that the burial should be in a different village due to public order concerns. Justice Nagarathna held that barring the burial of a person due to their religious identity was unconstitutional. Ultimately, the ‘split’ bench passed a unanimous order favouring Justice Sharma’s opinion directing burial in a different village considering that the body had already been in the mortuary for almost a month. 

Jointly authored, Wednesday’s reference order justifies the Constitution Bench reference to avoid delayed adjudication by setting up a three-judge bench first. A three-judge bench reference provides the litigants an additional forum for remedy, which would be lost by skipping that stage. Concerns on delayed adjudication still continue to persist when it comes to Constitution Bench references. While referring the ECI challenge to a Constitution Bench, the Order describes Constitution Bench pendency as an “institutional embarrassment” that calls for “self-introspection”. For this, the Bench requests the CJI to consider the establishment of a permanent five-judge bench. In 2023, former CJI D.Y. Chandrachud expressed an intent to do so but it has never been done so far.

While institutional introspection is always welcome, it does little to satisfy petitioners seeking a final verdict. There is no method to determine when the challenge will be listed again. The case has been in the Court’s docket since 2024. Four days of arguments had already taken place on merits, until the Union sought a larger bench reference. Ultimately, the Union secured the result it preferred.

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