Background and Context

The appointment of five new Supreme Court judges has triggered an intense constitutional debate because three appointees occupy seats created via the Supreme Court (Number of Judges) Amendment Ordinance, 2026 rather than permanent parliamentary legislation.

Constitutional Framework

Article 124(1) explicitly reserves the power to alter and prescribe the number of Supreme Court judges for Parliament by law. The original Constitution provided for a Chief Justice of India (CJI) and "not more than seven judges" until Parliament prescribes otherwise.

Article 123 (Ordinance-Making Power) grants the President power to promulgate Ordinances:

  • Designed as an exceptional power for urgent situations when Parliament is not in session
  • Has the same force as an Act of Parliament but is inherently temporary
  • Ceases to operate six weeks after Parliament reassembles unless approved by both Houses

Normal Legislative Process for Increasing SC Strength

  1. Chief Justice of India proposes need for additional judges to Union Ministry of Law and Justice
  2. After consultations (including Finance Ministry), Union Cabinet approves draft amendment bill
  3. Bill introduced in Parliament and passed by both Houses (simple majority)
  4. Presidential assent transforms it into law
  5. Additional judges appointed through collegium-based process

Key Supreme Court Pronouncements on Ordinances

R.C. Cooper vs. Union of India (1970)

  • Presidential "satisfaction" under Article 123 is not immune from judicial review
  • Ordinances can be struck down for mala fides or "colourable exercise of power"

D.C. Wadhwa v. State of Bihar (1986)

  • Repeated re-promulgation of Ordinances without legislative approval is a "fraud on the Constitution"
  • Constitutes subversion of democratic legislative process

Gokaraju Rangaraju vs. State of Andhra Pradesh (1981)

  • De Facto Doctrine: Judicial decisions remain valid even if underlying appointment is defective
  • Protects public policy interest in stability of judicial acts

Krishna Kumar Singh v. State of Bihar (2017)

  • Seven-judge Constitution Bench held Ordinance-making cannot be a parallel source of legislation
  • Executive convenience cannot replace legislative deliberation

Concerns Regarding Ordinance-Created Judicial Posts

1. Compromising Judicial Independence

  • Judicial independence is a pillar of Basic Structure doctrine
  • Judges holding seats at executive's sufferance undermines required detachment
  • Creates vulnerability to political influence

2. Conflict of Interest Optics

  • Union Government is the largest single litigant before Supreme Court
  • Judge's permanent seat depending on ruling party's legislative majority creates institutional vulnerability

3. Contradiction with NJAC Judgment (2015)

  • Supreme Court struck down NJAC citing executive veto would destroy judicial independence
  • Critics argue accepting Ordinance-based seats contradicts Court's own stance on insulation from government

4. Legal Anomaly of Lapsing Ordinance

  • If Parliament rejects replacing Bill, sanctioned strength reverts to 34
  • Status of sitting judges on "expired" posts remains legally contentious

5. Institutional Uncertainty

  • Junior appointees could face legal uncertainty if Ordinance lapses before permanent vacancy
  • Position temporarily dependent on parliamentary approval

6. Flawed Pendency Justification

  • Government claims extra judges will clear 93,000-case backlog
  • Historical evidence: expansions in 2008 and 2019 actually increased pendency
  • Root issue is admission of Article 136 Special Leave Petitions

Safeguarding Judicial Independence: Recommended Measures

1. Defining De Facto Doctrine Boundaries

  • Clarify doctrine as temporary shield for past acts, not cure for structural illegalities
  • Cannot be used to tolerate or prolong defective appointments

2. Prudent Swearing-in Protocols

  • Collegium should withhold swearing-in until Ordinance is ratified into Act
  • Protects appearance of neutrality and separation of powers

3. Recusal in High-Stakes Cases

  • Judges in temporary positions should recuse from cases involving Union Executive
  • Maintains public confidence until positions secured by law

Constitutional Morality

Dr. B.R. Ambedkar emphasized that judiciary must be "independent of the executive and must also be competent in itself." Upholding this requires the apex court's strength to be determined through democratic legislative process rather than emergency executive fiats.