Under Article 124(1) of the Constitution, Parliament has the authority, through legislation—which does not require a constitutional amendment—to increase, from time to time, the number of judges in the Supreme Court of India.
Article 123(1) of the Constitution empowers the President of India, if both Houses of Parliament are not in session, to promulgate an Ordinance. Article 123(2) stipulates that an Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance is required to be ratified within six weeks of Parliament being in session. It will cease to operate at the expiration of the said period, or if before the expiration of that period, resolutions disapproving it are passed by both Houses. Ordinances are ordinarily issued in emergent situations.
In accordance with the constitutional provisions referred above, the President issued the Supreme Court (Number of Judges) Amendment Ordinance, 2026, which was notified on May 16, 2026, as the Parliament was not in session. By virtue of this Ordinance, the strength of the judges of the Supreme Court, currently 33 excluding the Chief Justice of India, is sought to be increased to 37.
The Supreme Court's strength has increased over time since 1950. In that year, there were only 7 judges, excluding the Chief Justice. In 1986, through an amendment to the Supreme Court (Number of Judges) Act, 1956, the strength of judges was increased to 26. The strength was further increased to 30 in 2008, 33 in 2019 and to 37 now in 2026, excluding the Chief Justice of India.
In this context, several issues arise for consideration. The rationale for increasing the strength of the Supreme Court is quite clear. Litigation has increased exponentially. The population of India, 34 crore in 1950, has now gone up to 140 crore. The government will rightly argue that it is impossible for just 34 judges to dispose of the avalanche of matters filed each year.
The logic for this increase also raises concerns.
First, will the increase in the strength of judges from 34 to 37 stem the number of petitions filed in the Supreme Court? The average number of petitions pending consideration in each court sometimes reaches 60 or more on a Monday or a Friday. Two additional benches will not stem the tide. So, should we, in the years ahead, increase the strength to 40, 45, 50, or maybe even higher?
We are aware that the Supreme Court sits in benches of 2 or 3 judges. With the strength of 38, we could have a maximum of 17 odd benches. This translates to 17 Supreme Courts, for the decision of each of these benches is the decision of the Supreme Court.
Secondly, we know that judges sitting in benches in different combinations think differently. The outcome of judicial proceedings thus depends on the bench before which the matter is listed. Divergent interpretations of the law cause confusion when they are sought to be reconciled in the hierarchy of courts below. This, in turn, leads to further litigation. A reference to larger benches to reconcile the apparent conflict in the judgements delivered leads to uncertainty. Such benches are sometimes not constituted for months, or even years.
We have a Supreme Court, which, in its functioning, does not cater to both uniformity and certainty. The US Supreme Court has a fixed number of judges, who decide matters when sitting together. The majority decision is the law. There are no separate benches.
I am, though, not the one who is enthused by the manner in which the Supreme Court judges in the US are appointed. So, we do not have to follow the US system. However, we need a public debate. We need judges to interact with key members of the legal fraternity; we need the government on board and to decide how and in what manner we can help reduce the backlog of cases pending in the Supreme Court and, indeed, in the high courts. We need to move forward to ensure the integrity of the Supreme Court as an institution, whose decisions carry the authority of the law, is not compromised.
Litigation will continue to rise. New laws fuel litigation. Weaponising the law breeds litigation. The government is the largest litigator. Communities targetted by the law have no recourse but to seek justice. The expansion of the economy and the adoption of new technologies require regulation through law. That too requires the court’s affirmation or intervention when challenged. Increasing the strength of judges in the Supreme Court is not the answer. We require deliberations and a roadmap for the future.
Coming back to the Ordinance, it is possible that during the period Parliament is in session, the collegium of the Supreme Court will have decided to recommend names to fill the additional vacancies arising out of the aforesaid 2026 Ordinance. It is also possible that the vacancies will be filled before the monsoon session commences in July. There will then be no debate on the subject in Parliament. We will lose the opportunity for a full-fledged, thoughtful interaction in Parliament.
Ordinances are issued when Parliament is not in session, but only in matters which require urgent resolution. The Government has been waiting for seven long years since 2019 to increase the strength of the Supreme Court to 38. It could have waited a few more months so the amendment Bill could have been fully debated. We would have placed on record our views for future generations regarding the direction we thought this Republic should take, in the context of the Supreme Court of India as an institution. Quantity does not necessarily mean quality.
The issues raised need to be addressed. The Supreme Court is the only institution that has the power and duty to protect and preserve our constitutional values, which will chart the future course of our Republic.
Kapil Sibal | Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)