The Ordinance Question before the SC

Why in News?

The President promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026, increasing the number of Supreme Court judges from 33 to 37, excluding the Chief Justice of India, thereby raising the Court’s total sanctioned strength from 34 to 38. The move was justified on the grounds of pendency and the need to improve the efficiency of the apex court.

This move has drawn concern because the Court’s strength was increased by an Ordinance rather than a regular Act of Parliament. This raises a larger question: Can judicial independence be preserved when judges occupy posts created through a temporary executive-made law?

Why was the Ordinance Issued?

• The Supreme Court has been facing a rising pendency burden. As per the National Judicial Data Grid, the Supreme Court had over 93,000 pending cases in early June 2026. The government’s stated rationale for increasing the Court’s strength was to improve case disposal, enable more regular Constitution Benches, and reduce delays.
• The Union Cabinet had earlier approved a Bill to increase the Court’s strength. However, instead of waiting for Parliament’s Monsoon Session, the executive used the Ordinance route under Article 123. This has triggered debate because an Ordinance is temporary and depends on subsequent parliamentary approval.

Constitutional Framework: 

• Article 124(1): Strength of the Supreme Court: Article 124(1) provides that the Supreme Court shall consist of the Chief Justice of India and such number of other judges as Parliament may by law prescribe. Therefore, the sanctioned strength of the Supreme Court is not fixed permanently in the Constitution; it can be altered by law.
• Supreme Court (Number of Judges) Act, 1956: The number of judges has historically been increased through amendments to this Act. The latest Ordinance amends this law by increasing the number of puisne judges from 33 to 37.
• Article 123: Ordinance-making Power: Article 123 empowers the President to promulgate an Ordinance when Parliament is not in session, and immediate action is necessary. An Ordinance has the same force and effect as an Act of Parliament, but it must be laid before both Houses and ceases to operate six weeks after Parliament reassembles unless approved. 
• Article 124(2): Appointment of Judges: Judges of the Supreme Court are appointed by the President after consultation with judges of the Supreme Court and High Courts. In practice, this has evolved into the Collegium system, where the judiciary has primacy in appointments. 

The Core Constitutional Issue: 

• The issue is not whether Parliament can increase the number of Supreme Court judges. It clearly can. The deeper issue is whether temporary, executive-made legislation should be used to create judicial seats in the highest constitutional court.
• A regular statute expresses the will of Parliament. An Ordinance, although legally valid for its duration, is an exceptional executive instrument. When judges are appointed to posts created by an Ordinance, their seats remain dependent on whether Parliament later converts the Ordinance into an Act.
• This creates a perception problem: a judge occupying an Ordinance-created post may appear to depend, indirectly, on the executive and Parliament for the continuation of that seat. Judicial independence includes not only actual independence but also the appearance of institutional detachment from the political branches. 

Why the Ordinance Route is Controversial?

• Temporary Nature of Ordinances: An Ordinance may be withdrawn by the President, disapproved by Parliament, or lapse six weeks after Parliament reassembles. If the Ordinance creating additional judicial posts lapses, uncertainty may arise about the status of judges appointed to those posts. 
• Security of Tenure: Supreme Court judges enjoy constitutional security of tenure. They can be removed only through the special process of impeachment under Article 124(4). However, if the very post to which a judge is appointed ceases to exist, a novel constitutional question arises: does the judge continue, or does the post disappear? This issue is largely untested in Indian constitutional law.
• Appearance of Executive Dependence: Judicial independence is not merely about appointment procedure. It also includes security of tenure, decisional freedom, and freedom from perceived obligation to the executive. 
• Ordinance as a Bypass of Parliamentary Deliberation: The Cabinet had already cleared a Bill to expand the Court’s strength. Therefore, critics argue that the executive could have waited for Parliament. The use of an Ordinance in such circumstances raises the question whether there was a genuine urgency or merely administrative convenience. 
• Institutional Inconsistency: The Supreme Court has historically warned against excessive use of Ordinances.
  • In D.C. Wadhwa v. State of Bihar, the Court criticised repeated repromulgation of Ordinances as a fraud on the Constitution. Ordinances are meant for extraordinary situations, not routine law-making.
  • In Krishna Kumar Singh v. State of Bihar, a seven-judge Bench held that ordinance-making power cannot become a parallel source of legislation.
• Separation of Powers: The executive, legislature and judiciary must maintain institutional distance. When the executive creates temporary judicial posts, the balance between cooperation and dependence becomes delicate.

Arguments supporting the Ordinance: 

• Pendency Crisis: The Supreme Court’s pendency has crossed 93,000 cases. Additional judges can help increase disposal capacity, especially if supported by better case management.
• Need for Constitution Benches: A larger Court can enable more regular Constitution Benches while allowing smaller benches to continue handling routine appeals and special leave petitions.
• Ordinance has Force of Law: Under Article 123, an Ordinance has the same force and effect as an Act of Parliament during its validity. Therefore, appointments made under it are not automatically unconstitutional.
• Parliamentary Approval Likely: Since the government has the numbers and the Opposition may be reluctant to unsettle already appointed judges, the Ordinance is likely to be replaced by an Act.
• Judicial Appointments followed Collegium Process: The judges were recommended by the Supreme Court Collegium and appointed under Article 124(2). Thus, the appointment process itself was not bypassed.

Parliament should debate and pass the Bill without delay to remove uncertainty over the status of the additional posts. Changes affecting constitutional courts should normally be made through regular parliamentary legislation, not temporary executive law.

The Supreme Court’s authority rests on public confidence, and that confidence requires visible distance from executive convenience.

UPSC Mains Question: 

Q. “The use of Ordinance-making power to alter the strength of the Supreme Court raises questions not only of legality but also of constitutional propriety.” Discuss in the context of judicial independence and separation of powers.