Constitutional Questions and Judicial Independence

The appointment of five new judges to the Supreme Court of India has generated an important constitutional debate because three of these appointments occupy positions created through the Supreme Court (Number of Judges) Amendment Ordinance, 2026, rather than through a permanent Act of Parliament. The controversy raises significant questions regarding judicial independence, security of tenure, separation of powers, and constitutional morality.

Constitutional Framework for Increasing the Strength of the Supreme Court

Under Article 124(1) of the Constitution, the power to determine the strength of the Supreme Court lies exclusively with Parliament. The Constitution originally provided for a Chief Justice of India and not more than seven other judges, while allowing Parliament to increase this number through legislation.

Accordingly, Parliament has periodically amended the Supreme Court (Number of Judges) Act, 1956, increasing the sanctioned strength of judges from time to time, including expansions in 2009 and 2019.

The usual process begins with the Chief Justice of India (CJI) recommending an increase in judicial strength based on factors such as mounting case pendency. After consultations with the Ministries of Law and Finance, the Union Cabinet approves a legislative proposal, which is then passed by both Houses of Parliament through a simple majority and receives Presidential assent. Only after this process are additional judges appointed through the Collegium system.

The Ordinance-Making Power under Article 123

The present controversy stems from the use of Article 123, which empowers the President to promulgate an Ordinance when Parliament is not in session and immediate legislative action is necessary.

An Ordinance possesses the same force as an Act of Parliament, but its nature is inherently temporary. It automatically ceases to operate six weeks after Parliament reconvenes unless it receives parliamentary approval, is withdrawn by the President, or is rejected by either House.

The Constitution therefore treats Ordinances as an exceptional emergency mechanism rather than an alternative route to ordinary legislation.

Judicial Interpretation of Ordinance Powers

The Supreme Court has repeatedly emphasized the exceptional character of Ordinance-making powers.

In R.C. Cooper v. Union of India (1970), the Court held that the President's satisfaction under Article 123 is subject to judicial review, and an Ordinance may be invalidated if it constitutes a colourable exercise of power or is promulgated in bad faith.

In D.C. Wadhwa v. State of Bihar (1986), the Court ruled that the repeated re-promulgation of Ordinances without legislative approval amounts to a fraud on the Constitution, undermining democratic governance.

Later, in Krishna Kumar Singh v. State of Bihar (2017), a seven-judge Constitution Bench clarified that the Ordinance-making power is not a parallel source of legislation and must be exercised only in situations demanding urgent action. The Court emphasized that executive convenience cannot substitute for parliamentary deliberation.

The De Facto Doctrine and Judicial Appointments

An important legal principle relevant to the present controversy is the De Facto Doctrine, recognized by the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh (1981).

The Court held that judicial decisions delivered by a judge remain valid even if the appointment or the post itself is later found to suffer from legal defects. This doctrine exists to maintain legal certainty and public confidence in the judicial system.

Concerns Regarding Ordinance-Created Judicial Posts

Threat to Judicial Independence

The independence of the judiciary forms an essential part of the Basic Structure Doctrine. Judges are expected to function without any dependence upon or obligation to the executive.

Since an Ordinance is temporary and can lapse or be withdrawn, critics argue that judges appointed to Ordinance-created positions may appear to hold office subject to the political fortunes of the government, thereby creating an institutional vulnerability inconsistent with judicial independence.

Conflict of Interest and Institutional Optics

The Union Government is the largest litigant before the Supreme Court. Consequently, a situation in which judges occupy positions that require subsequent parliamentary approval by the ruling party raises concerns regarding the appearance of neutrality.

Even if no actual influence exists, the perception that judicial positions depend upon executive or legislative approval may weaken public confidence in the complete independence of the judiciary.

Contradiction with the NJAC Judgment

The issue also invites comparison with the Supreme Court Advocates-on-Record Association v. Union of India (2015), commonly known as the NJAC case.

In striking down the National Judicial Appointments Commission, the Supreme Court argued that executive involvement in judicial appointments could undermine judicial independence and destroy the primacy of the judiciary.

Critics therefore contend that accepting Ordinance-based judicial positions appears inconsistent with the principles articulated in the NJAC judgment, as it creates a degree of dependence upon executive action.

Legal Uncertainty if the Ordinance Lapses

Another significant concern relates to the consequences if Parliament fails to pass the replacement legislation. In such circumstances, the sanctioned strength of the Supreme Court would automatically revert to its earlier number.

This creates an unprecedented constitutional question regarding the status of sitting judges occupying posts that have legally ceased to exist. Although the De Facto Doctrine may protect judgments already delivered, the continuing legitimacy of such appointments would remain uncertain.

Questioning the Pendency Argument

The government has justified the increase in judicial strength as a measure to reduce the Supreme Court's growing backlog of cases. However, historical experience suggests that previous expansions in judicial strength have not necessarily reduced pendency.

Many scholars argue that the fundamental problem lies in the large number of Special Leave Petitions (SLPs) under Article 136, which significantly expand the Court's workload. Merely increasing the number of judges, therefore, may not provide a long-term solution unless accompanied by broader judicial reforms.

Measures to Safeguard Judicial Independence

Several institutional safeguards have been proposed to preserve judicial independence and constitutional propriety.

The Supreme Court may clarify that the De Facto Doctrine serves only as a temporary mechanism for preserving legal certainty and cannot permanently validate constitutionally questionable arrangements.

The Collegium could also establish a convention of delaying appointments to newly created positions until Parliament formally converts an Ordinance into an Act, thereby avoiding any perception of executive influence.

Conclusion

Dr. B.R. Ambedkar emphasized that the judiciary must remain both independent of the executive and institutionally secure in its functioning. The present controversy highlights the importance of ensuring that the composition and strength of the Supreme Court are determined through the ordinary democratic process of parliamentary legislation rather than through exceptional executive powers.

Ultimately, the issue is not merely about increasing the number of judges but about preserving constitutional morality, judicial independence, and the integrity of India's separation of powers framework, which constitute the foundation of the country's democratic order