Context: The Supreme Court of India is facing a significant constitutional debate after the President issued an Article 123 Ordinance raising the court’s sanctioned judicial strength from 34 to 38.
About Supreme Court Seat Expansion via Ordinance: Constitutional Questions and Institutional Risks:
What Occurred?
- Following the promulgation of the Presidential Ordinance in May, five new judges were administered the oath of office.
- While two of these appointments seamlessly filled existing, lawful vacancies within the original 34-judge baseline, the remaining three appointments rest entirely on the temporary seats created by the executive decree
Constitutional Provisions Involved:
- Article 124(1): Explicitly states that the composition and ultimate number of judges in the Supreme Court is a matter left for Parliament to prescribe by law.
- Article 123: Grants the President the power to promulgate Ordinances during parliamentary recess. While an Ordinance carries the same force as an Act, it is short-lived; it expires six weeks after the reassembly of Parliament unless officially replaced by a Bill or disapproved by a statutory resolution.
The Calculated Risk: The Collegium’s Strategic Math
The Supreme Court currently sits at 37 active judges. Legal experts reveal that the Collegium intentionally left the 38th seat vacant and carefully mapped out the appointments based on the judicial retirement calendar to transition the temporary judges into permanent seats:
- Absorbing the First Two Ordinance Judges: Justice Pankaj Mithal retires on June 16, 2026, and Justice J.K. Maheshwari retires on June 28, 2026. Their departures reopen two permanent structural seats, allowing two of the three newly appointed Ordinance judges to automatically move into permanent positions.
- The Vulnerable Position of the Junior-Most Judge: Justice V. Mohana, appointed directly from the Bar, sits alone in a precarious position. She cannot move into a permanent, lawful seat until Justice Sanjay Karol retires on August 22, 2026.
- The Strategic Wager: Justice Karol’s retirement almost coincides with the exact window when the Ordinance is expected to lapse during the parliamentary monsoon session. The Collegium is betting that a replacement Act will be passed before August 22, or that Justice Karol’s vacancy will open up just in time to absorb her if the Ordinance expires.
Key Conceptual and Institutional Challenges:
- Undermining Settled Jurisprudence Against Executive Lawmaking: Accepting an Ordinance to expand the court flies in the face of the Supreme Court’s own historical warnings against bypassing the legislature.
Example: In D.C. Wadhwa vs State of Bihar (1986), the court ruled that governing through repromulgated ordinances is a fraud on the Constitution, a principle backed by the 2017 Krishna Kumar Singh judgment against parallel executive legislation.
- Compromising the Vital External Appearance of Separation of Powers: Judges holding seats created by a temporary decree face an inherent conflict of interest when presiding over matters involving the government.
Example: Because the ruling political majority must pass the Bill to regularize their jobs, the court’s necessary detachment is compromised when that same Union Government appears before them as a primary litigant.
- Unprecedented Operational Anomalies if the Ordinance Fails: If Parliament rejects the Bill, the legal status of an active Supreme Court judge sitting on an expired post remains completely untested in Indian history.
Example: While past decisions like Gokaraju Rangaraju (1981) protect their rulings under the de facto doctrine, a lapse would leave a judge holding a post that the law no longer recognizes.
- Eroding Primacy Hard-Won in the Second Judges Case: By allowing the executive to dictate the court’s size on a temporary whim, the judiciary risks losing the independence it fought to protect.
Example: In the 2015 NJAC case, the court struck down a constitutional amendment to preserve its primary role in appointments, yet it has now left its bench strength dependent on executive goodwill.
Way Forward:
- Prioritizing Immediate Parliamentary regularisation: Parliament must prioritize tabling and passing the replacement Bill early in the monsoon session to close the constitutional anomaly.
- Establishing Statutory Caps on Bench Expansion Ordinances: Introduce a clear legal rule stating that any future changes to the Supreme Court’s size can only be executed through regular parliamentary amendments, not temporary ordinances.
- Restricting Future Swearing-In Protocols to Permanent Vacancies: The Collegium should establish an internal guideline refusing to appoint or swear in judges to temporary, ordinance-created seats until they are permanently formalized by law.
- Recusing Ordinance-Dependent Judges from High-Stakes Policy Reviews: To protect institutional integrity, judges occupying temporary seats should recuse themselves from high-profile constitutional cases involving the Union Executive until their positions are fully secure.
Conclusion:
By matching its judicial appointments to the ticking clock of parliamentary sessions and upcoming retirements, the Supreme Court has taken a highly calculated institutional risk. While political numbers suggest the government will regularize the seats, the deeper issue is that the judiciary has staked its security of tenure on the goodwill of the political branch. True judicial independence requires more than just the authority to check executive power—it relies on an unyielding institutional instinct to protect its own separation from it.
