Daily Editorial Analysis 3 October 2026

A Court Divided by Its Own Architecture

Context

• The Supreme Court of India is the guardian of the Constitution and is expected to provide authoritative answers to fundamental legal questions.
• However, its expanding workload, fragmented Bench system and delays in constituting Constitution Benches have created significant institutional challenges.
• The September 23 split verdict concerning the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 illustrates these difficulties.
• The disagreement was not initially about the validity of the law but about whether a two-judge Bench was competent to decide the challenge.

The Election Commissioners’ Appointment Framework

• The 2023 Appointment Law
  • The 2023 Act provides that the Chief Election Commissioner and Election Commissioners shall be appointed on the recommendation of a committee consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
  • The law replaced the interim arrangement established by the Constitution Bench in Anoop Baranwal vs Union of India (2023), under which the Chief Justice of India served as the third member of the selection committee.
• The Article 145(3) Dispute
  • During the proceedings, the Union government argued that the challenge raised a substantial question concerning constitutional interpretation and therefore required a minimum five-judge Bench under Article 145(3).
  • Justice Dipankar Datta rejected this argument, while Justice Satish Chandra Sharma accepted it.
  • The matter was consequently placed before the Chief Justice for consideration of a Constitution Bench.
  • Article 145(3) does not require every important or new case to be heard by five judges. It applies when there is a substantial question of constitutional interpretation.
  • Earlier decisions have distinguished constitutional interpretation from merely applying an already established constitutional principle.

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The Constitutional Significance of Anoop Baranwal

• The Interim Nature of the CJI’s Role
  • Both judges agreed that the CJI’s membership of the appointment committee in Anoop Baranwal was an interim arrangement, intended to operate until Parliament enacted legislation.
  • However, the judgment went beyond merely creating that temporary mechanism.
• Protection from Executive Dominance
  • The Constitution Bench had held that Article 324 requires safeguards against exclusive executive control over appointments to the Election Commission.
  • This constitutional principle is binding under Article 141.
  • Justice Datta therefore viewed the central issue as whether the new statutory arrangement complied with an already established constitutional requirement.
  • Justice Sharma adopted a different approach, reasoning that since the constitutional validity of the 2023 Act had not previously been authoritatively decided, the matter required a Constitution Bench.

The Broader Institutional Problem

• Transformation of the Supreme Court
  • The Supreme Court has changed considerably since 1950. It now has a sanctioned strength of 38 judges and functions largely through two-judge Benches.
  • A large part of its workload consists of special leave petitions and ordinary appeals, while Constitution Benches are constituted only when judges can be spared from this daily workload.
• Fragmentation and Judicial Consistency
  • This structure can result in different Benches developing different interpretations of legal principles. Such fragmentation creates challenges for precedent, consistency and constitutional certainty.
  • The problem becomes particularly serious when constitutional questions remain unresolved for years.
  • Anoop Baranwal, for instance, was instituted in 2015, referred to a Constitution Bench in 2018 and decided only in 2023.

The Consequences of Judicial Delay

• By the time the present challenge is finally decided, Election Commissioners appointed under the disputed law may have already overseen multiple State and general elections.
• Thus, delay can create a fait accompli, making a later judicial ruling less capable of reversing the consequences of an earlier decision.
• Constitutional courts must resolve fundamental questions in a reasonable time so that legal uncertainty does not persist indefinitely.

The Way Forward: Institutional Reform

• One possible reform is the creation of a permanent Constitution Bench dedicated primarily to constitutional questions.
• The Law Commission’s 229th Report (2009) had already proposed a similar structural arrangement.
• The Master of the Roster system gives the Chief Justice substantial authority over Bench composition.
• In a Court with 38 judges, this is more than a routine administrative function.
• Bench composition should therefore be governed by transparent, predetermined and objective rules to strengthen institutional confidence and reduce uncertainty.

Conclusion

• The dispute over the Election Commissioners’ appointment law reveals a deeper structural challenge facing the Supreme Court.
• Delayed Constitution Benches, fragmented adjudication, uncertainty over precedent and concentrated roster powers can weaken the Court’s ability to perform its constitutional role effectively.
• Reforms should provide clearer standards under Article 145(3), faster constitution of larger Benches, transparent Bench allocation and stronger adherence to precedent.
• The Supreme Court was conceived not merely as an appellate institution but as the guardian of constitutional governance.
• Its institutional structure must therefore ensure that the most important constitutional questions are answered before delay makes those answers practically ineffective.

A Court Divided by Its Own Architecture FAQs

Q1. What was the main issue in the Supreme Court’s split verdict?
Ans. The main issue was whether a two-judge Bench could hear the challenge to the 2023 Election Commissioners’ appointment law.

Q2. What does Article 145(3) provide?
Ans. Article 145(3) requires at least five judges when a case involves a substantial question of constitutional interpretation.

Q3. What did Anoop Baranwal establish?
Ans. Anoop Baranwal held that Election Commission appointments should be protected from exclusive executive control.

Q4. Why are delays in forming Constitution Benches problematic?
Ans. Delays can allow disputed laws to operate for years before their constitutional validity is determined.

Q5. What institutional reforms are suggested?
Ans. The reforms include permanent Constitution Benches, transparent Bench allocation, faster hearings and stronger adherence to precedent.

Source: The Hindu

India’s Model BIT — A Decade Later, Amid Changes

Context

• India’s decision to revise its Model Bilateral Investment Treaty (BIT) nearly a decade after the 2015 framework comes at an important stage in the evolution of international investment law.
• The Union Budget 2025-26 announced the revamp to make the framework more investor-friendly.
• However, the objective is not simply to increase investor protection but to incorporate India’s experience since 2015 while responding to changes in the global investment regime.
• A revised Model BIT should promote investment, legal certainty, sustainable development and regulatory autonomy while limiting unnecessary litigation risks.

A Cautious Framework

• India’s 2015 Model BIT emerged amid concerns over investor-state arbitration, particularly after the White Industries Australia Limited v. Republic of India award in 2011.
• It adopted a cautious framework with a narrower definition of investment, carefully defined substantive protections, regulatory exceptions and a requirement to pursue domestic judicial and administrative remedies for five years before treaty arbitration.
• India’s subsequent treaty practice has become more flexible. The India-UAE BIT reduced the local-remedies period to three years, while the India-Israel Bilateral Investment Agreement, effective from July 2026, also provides a three-year period.
• These agreements demonstrate a gradual shift from the rigidity of the 2015 framework.
• A Model BIT should function as a starting point for negotiations, rather than an inflexible template.
• Individual agreements should retain flexibility to reflect the economic and legal circumstances of treaty partners.

What a New Model Must Factor In

• Most Favoured Nation Provision
  • The inclusion of a Most Favoured Nation (MFN) clause requires careful consideration.
  • Most Indian investment treaties have excluded MFN provisions, limiting investors’ ability to invoke protections contained in other treaties.
  • If included, the clause must clearly define its scope. Maffezini v. Spain demonstrated how an MFN provision could potentially be used to access more favourable dispute-settlement arrangements from another treaty.
  • Conversely, Plama Consortium v. Bulgaria adopted a restrictive interpretation where such an extension was not clearly authorised.
  • India should therefore specify whether MFN provisions apply to dispute settlement, reducing interpretive uncertainty.
• Investor Obligations and Counterclaims
  • The revised model should also establish clearer investor obligations.
  • The India-Uzbekistan BIT permits a state to bring counterclaims against investors or investments in specified circumstances.
  • The new model could incorporate clearly defined responsibilities relating to compliance with domestic law and responsible investment.
  • Such provisions would create greater symmetry between investor rights and obligations while establishing a legal basis for legitimate state counterclaims.

Dispute Settlement Reform

• The five-year domestic-remedies requirement under the 2015 Model should be reassessed.
• The three-year periods in the India-UAE and India-Israel agreements indicate greater flexibility in India’s approach.
• The revised model could strengthen consultation, mediation and dispute-prevention mechanisms before arbitration.
• Early resolution could reduce litigation, costs and uncertainty while improving investor-state relations.

Need for Precision and Clarity

• The revised model should provide greater precision regarding expropriation and Fair and Equitable Treatment (FET).
• Ambiguous provisions can encourage conflicting interpretations and increase disputes.
• At the same time, investor protection should not undermine the state’s right to regulate in the public interest.
• The treaty should clearly distinguish legitimate regulation from compensable expropriation.
• Similarly, sustainable development and responsible investment should be supported by enforceable legal provisions wherever India intends to impose investor obligations rather than remaining merely aspirational principles.

Conclusion

• India’s Model BIT revision provides an opportunity to create a clearer, balanced and adaptable investment framework.
• The experience of the past decade suggests that excessive rigidity can restrict treaty flexibility, while vague protections can generate uncertainty.
• The revised model should incorporate India’s evolving treaty practice, clarify MFN provisions, reform dispute settlement, recognise investor responsibilities, strengthen dispute prevention and preserve regulatory policy space.
• A carefully designed Model BIT can strengthen India’s position in the changing global investment regime and enable it to play a greater role in shaping international investment rules.

India’s Model BIT — A Decade Later, Amid Changes FAQs

Q1. What is a Model BIT?

Ans. A Model BIT provides a framework for India’s negotiations with foreign countries on investment protection.

Q2. Why is India revising its Model BIT?

Ans. India is revising it to incorporate lessons from the past decade and adapt to changes in international investment law.

Q3. What change has India made regarding local remedies?

Ans. India has reduced the local-remedies period from five years to three years in agreements with the UAE and Israel.

Q4. Why is the MFN provision important?

Ans. The MFN provision is important because its scope can determine whether investors access protections available under other treaties.

Q5. What should the revised Model BIT achieve?

Ans. The revised Model BIT should balance investor protection with India’s regulatory autonomy and promote predictable investment rules.

Source: The Hindu