Increase In Supreme Court Strength Through Ordinance-A Critique

It has become fashionable to talk of increasing the judge-strength to cope with the mounting work and pendency in courts. That is spoken of even about the highest court. Such talk is translated into action by increasing the number of judges. The Constitution originally fixed the strength of the Supreme Court to be eight-the Chief Justice of India and seven other judges. The Constitution enables Parliament by law to increase the strength. That has been done quite a few times over the 76 years of the Constitution. It was last fixed at thirty-four in 2019. Now in May 2026 it has been increased to thirty-eight by promulgating an Ordinance. The wisdom of both the increase and the manner of achieving that is highly debatable.

The Supreme Court, though at the top of the judicial hierarchy and the final appellate court, is essentially a constitutional court which is the sentinel on the qui vive and the arbiter of all actions of the different wings of government. The highest court, to retain its character as such, should be a compact body. That is the case with the apex court in all common law jurisdictions. Subba Rao, CJ, who strongly believed in building up the image of the Court, considered a maximum strength of nine Judges to be an appropriate number for a Supreme Court. Whether or not that would be ideal in the present circumstances, a mere increase in judge strength would perhaps be only counter-productive. Parkinson's law would be attracted: the work expanding and distributing to fill the time available for its completion and subordinates multiplying regardless of the amount of work produced, as Krishna Iyer, J very forcefully pointed out. “Parkinson's law generates otiose work for more functionaries to keep themselves idly occupied. The superstitious addiction to the numerological nostrum as a pharmacopical curative is an illusion as the numbers experiment has proved in the past. A crowd of robed brethren is chaos in the cosmos while a brilliant batch with a sharp grip on the backlog makes all the difference.”

Over the years the Supreme Court has largely shed its original essential quality. The structure, composition and functioning of the Court changed from what was originally envisaged. It has converted itself into a general court of appeal, much of its work being confined to considering special leave petitions sitting in Division Benches of two and sometimes three judges. Parliament also has contributed to the dilution of the Supreme Court's status: it has been designated as the first appellate court- an appeal court on facts and law- under various special enactments. It is only in the last few years that we have regular Constitution Bench sittings after a long time. Yet the major chunk of the Court's work is being done in Benches of two and rarely three.

Now with thirty-eight judges there can be eighteen or nineteen benches which in effect means eighteen or nineteen Supreme Courts. This can lead to greater uncertainty and more confusion. Polyvocality is desirable and adds to the strength and prestige of the Court and helps in the development of the law. But that is different opinions being rendered by judges constituting the same bench and hearing the same case: the majority view being the view of the Court while the minority view may sow the seeds for future growth. It is not different benches taking different views and each speaking differently leaving the legal landscape dismal and cloudy. A compact court helps promote uniformity, certainty and stability. Increase in numbers does not necessarily mean better quality.

The sage admonition of Frankfurter, J. which has been referred to and quoted by our Supreme Court bears repetition. “This is not the supreme court of review for every case decided “unjustly” by every court in the country. The Court will be enabled to discharge adequately the vital responsibility it bears for the general welfare only if it restricts its reviewing power to the adjudication of constitutional issues or other questions of national importance, including therein settlement of conflict among the circuits. Judicial reflection is a process that requires time and freedom from the pressure of having more work to do than can be well done. The judgments of the Court are collective judgments. Such judgments are especially dependent on ample time for private study and reflection in preparation for discussions in conference. Without adequate study, there cannot be adequate reflection; without adequate reflection, there cannot be adequate discussion; without adequate discussion, there cannot be that full and fruitful interchange of minds that is indispensable to wise decisions and persuasive opinions by the Court. Unless the Court vigorously enforces its own criteria for granting review of cases, it will inevitably face an accumulation of arrears or will dispose of its essential business in too hurried and therefore too shallow a way.” [Ferguson v. Moore McCormack Lines Inc.352 US 521 (1957)] (emphasis supplied)

The Supreme Court's sanctioned strength has more than quadrupled over the last 7 decades while its average judge tenure length has decreased. It is almost universally agreed that simply increasing the judge strength in the Supreme Court has hardly any effect on the pendency: there is no increase in disposals or decrease in the number of cases pending. Something more profound is called for. The Statement of Objects and Reasons of the Bill to increase the judge strength in 2019 quoted the then CJI Ranjan Gogoi: 'inadequate strength of Judges is one of the prime reasons for backlog of cases in the Supreme Court.' Three years later, the Supreme Court changed its stance: On November 29, 2022 it stated that increasing the number of judges was not the solution to the Court's pendency problem.

The problem does not admit of any easy and simple solution. It calls for bestowing serious thought and an informed debate. Increasing the judge strength is not the solution.

The manner and method of enhancing the judge strength this time is startling. The Constitution empowers Parliament to increase the number of judges in the Supreme Court by making a law in that behalf. But now the increase has been brought about by an Ordinance and not a Parliamentary legislation. It is true that when Parliament is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action, an Ordinance may be promulgated, and an Ordinance has the same force and effect as an Act of Parliament. The conditions for promulgating an Ordinance are satisfied.

There was, however, no tearing hurry for the Ordinance and increasing the number of judges before the next session of Parliament, a couple of months away. Furthermore, the Court is on the verge of the annual vacation. The impression created and the doubt engendered is whether there is an undue haste to make appointments to the top court which raises eyebrows. This may not be true and it is no reflection on any appointees, past or future. But this perception exists. And public perception does matter. If appointments are made now before Parliament meets and the Ordinance is tabled and debated, that exercise- Parliamentary debate and oversight- would be rendered futile and farcical. Such a stratagem is repugnant to the constitutional scheme and ethos.

The necessity, propriety and expediency of promulgating an Ordinance, it is well settled, is beyond the scope of judicial review. Hence the Ordinance and the consequential increase in the judge strength of the Supreme Court may not be assailed as unconstitutional. But constitutionality is not all. That which is constitutional may still be undesirable, unwise and imprudent. That is what this whole exercise is all about. Further, even the best ends must be achieved by means that are wholesome. Frankfurter, J. perceptively observed that constitutionality and wisdom or what is right are not synonymous. Our preoccupation with constitutionality rather than with the wisdom of anything, tends to be preoccupation with a false value. The ultimate reliance for the deepest needs and precious interests of civilization must be found outside their vindication in courts of law. Only a persistent, positive translation of the faith of an incorruptible and principled society into the convictions, habits and actions of the community is the real protection against unprincipled and amoral actions of those in public life and in power.

Author is a Senior Advocate at Supreme Court of India. Views are personal.