The promulgation of the Supreme Court (Number of Judges) Amendment Ordinance, 2026, by President Droupadi Murmu on May 16, 2026, marks a significant moment in India’s judicial history. The ordinance amends Section 2 of the Supreme Court (Number of Judges) Act, 1956, replacing the word “thirty-three” with “thirty-seven,” thereby raising the sanctioned judicial strength of the Supreme Court from 33 to 37 judges excluding the Chief Justice of India, and from 34 to 38 including the CJI. This legislative intervention comes nearly two weeks after the Union Cabinet approved the proposal, and amid a backlog of over 93,000 cases threatening to breach the six-figure mark just as the court enters its summer recess. For UPSC aspirants, this development sits at the rich intersection of constitutional law, judicial administration, separation of powers, and governance reform — making it a high-priority topic for GS-II.
The use of the ordinance route is itself constitutionally significant. Under Article 123 of the Constitution, the President can promulgate an ordinance when Parliament is not in session and “circumstances exist which render it necessary for her to take immediate action.” The gazette notification explicitly references this justification. However, the resort to an ordinance for what is essentially a structural judicial reform raises legitimate questions: Was the situation so urgent as to preclude waiting for Parliament’s monsoon session? Is the pendency crisis — a problem decades in the making — sudden enough to satisfy the constitutional threshold of “necessity”? These are precisely the kinds of analytical questions that UPSC Mains examiners expect candidates to engage with critically.
This development also draws attention to the Framers’ original design. Article 124(1) of the Constitution originally envisaged a Supreme Court comprising the Chief Justice and “not more than seven judges,” with Parliament empowered to increase this number by law. From that modest beginning, India’s highest court has grown through successive legislative amendments — from 8 judges in 1950 to 11 in 1956, 14 in 1960, 18 in 1977, 26 in 1986, 31 in 2009, 34 in 2019, and now 38 in 2026. Each expansion has been driven by the inexorable growth of litigation in a country of 1.4 billion people, yet the fundamental structural tensions within the judiciary — understaffing, under-infrastructure, and procedural delays — remain inadequately addressed by mere numerical expansion.
Background or Context
Five Important Key Points
- The Supreme Court (Number of Judges) Act, 1956, was last amended in 2019, when sanctioned strength was raised from 30 to 33 (excluding CJI), after a six-year gap since the previous amendment.
- The current backlog in the Supreme Court exceeds 93,000 cases, with the figure threatening to cross one lakh as the court enters its summer partial-working-days schedule in June 2026.
- The ordinance will cease to operate if it is not placed before and approved by both Houses of Parliament within six weeks of the reassembly of Parliament, or if resolutions disapproving it are passed by both Houses.
- Two existing judicial vacancies exist in the Supreme Court — positions left by the retirement of former CJI Justice B.R. Gavai in November 2025 and Justice Rajesh Bindal in April 2026 — with three more retirements scheduled in 2026.
- The Framers of the Constitution had originally envisaged a Supreme Court of not more than seven judges besides the CJI, placing faith in Parliament to expand the bench as necessity demanded.
Historical and Legislative Background
The history of judicial expansion in India reflects the gap between constitutional design and operational reality. At Independence, the founding fathers conceived of the Supreme Court as primarily an apex constitutional court, not a court of mass appeals. However, the abolition of the Privy Council’s appellate jurisdiction, the expansion of fundamental rights litigation under Articles 32 and 226, and the progressive widening of the court’s original and appellate jurisdiction have transformed India’s Supreme Court into arguably the world’s busiest apex court.
The Tenth Law Commission Report (1958) first recommended increasing judicial strength, and successive Law Commission reports — particularly the 120th, 229th, and 245th — have recommended structural reforms including the establishment of a National Court of Appeal to filter cases reaching the Supreme Court, division of the court into constitutional and regular benches, and regional benches to reduce geographical concentration. None of these transformative structural recommendations have been implemented, leaving numerical expansion as the default response to pendency.
Constitutional Provisions and Legal Framework
Article 124 of the Constitution governs the establishment and constitution of the Supreme Court. Article 124(1) specifies the maximum strength of the court as determined by Parliament by law. Article 123, invoked by the President through this ordinance, empowers executive legislation when Parliament is not in session, subject to parliamentary ratification within six weeks. The ordinance must be placed before each House of Parliament when it reassembles. If it receives disapproval from both Houses, or if six weeks expire without any resolution, the ordinance lapses. The President may also withdraw the ordinance at any time.
Critically, the Supreme Court in D.C. Wadhwa v. State of Bihar (1987) held that the ordinance-making power is not an absolute power and that its re-promulgation to circumvent Parliament would be a fraud on the Constitution. The court has also emphasized in Krishna Kumar Singh v. State of Bihar (2017) that ordinances are subject to judicial review. While a single non-repromulgated ordinance for a structural judicial reform is unlikely to attract constitutional challenge, the principle remains important for analysis.
The Pendency Crisis: Dimensions and Drivers
The judicial pendency crisis in India operates at three levels: the Supreme Court, the 25 High Courts, and the approximately 25,500 district and subordinate courts. According to the National Judicial Data Grid, over 5 crore cases are pending across Indian courts. The Supreme Court’s 93,000-plus backlog is in some ways the most symbolically damaging, since it represents the final court of appeal for citizens who have already waited years at lower levels.
The COVID-19 pandemic accelerated e-filing of cases, which paradoxically increased the case influx even as physical court operations were restricted. The adoption of video conferencing for hearings, while improving access, also reduced the deterrent cost of litigation and encouraged more filings. Structural factors include inadequate number of court working days (approximately 190 per year against a required 250), delays in collegium recommendations and executive appointments, and the concentration of constitutional and regular civil/criminal appellate jurisdiction in a single institution.
Governance Concerns and Institutional Issues
The expansion of judge strength, while necessary, is not sufficient. India’s judge-to-population ratio stands at approximately 21 judges per 10 lakh population against the Law Commission’s recommended 50 per 10 lakh. Infrastructure — courtrooms, research assistants, law clerks, administrative staff — must scale proportionately. The collegium system of judicial appointments, itself the subject of sustained constitutional debate following the Supreme Court’s judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015) which struck down the National Judicial Appointments Commission (NJAC), must be capable of identifying and recommending competent candidates for the four new positions within a reasonable timeframe.
The issue of judicial vacancies is chronic. At the time of the ordinance, two vacancies already existed in the Supreme Court. Adding four new sanctioned positions means the court must fill six positions. Given the typically slow pace of collegium recommendations and the potential for executive delay in processing warrants of appointment, there is a real risk that sanctioned strength and working strength will diverge significantly — a pattern well-documented at the High Court level, where sanctioned strength typically exceeds actual strength by 30 to 40 percent.
Comparative Analysis: Global Perspectives
Comparisons with other apex courts are instructive. The United States Supreme Court has maintained nine justices since 1869, with all major constitutional adjudication conducted by this compact bench. The United Kingdom’s Supreme Court has 12 justices. Germany’s Federal Constitutional Court has 16 judges. These courts manage their dockets through rigorous certiorari processes — accepting only a small fraction of petitions for full hearing. India’s Supreme Court, by contrast, has no effective certiorari jurisdiction: its Special Leave Petition jurisdiction under Article 136 is extraordinarily broad, inviting appeals from virtually any court or tribunal in India.
The 229th Law Commission Report specifically recommended the creation of a Court of Appeal between the High Courts and the Supreme Court, which would hear regular civil, criminal, and other appeals, leaving the Supreme Court free to exercise its constitutional jurisdiction. Implementation of this recommendation would be far more transformative than the addition of four judges.
Bihar Connection
The pendency crisis has particular relevance for Bihar. As of recent National Judicial Data Grid figures, Bihar’s courts carry one of the highest case backlogs in the country. The Patna High Court has consistently operated with significant vacancies relative to sanctioned strength. Citizens in Bihar — many of whom depend on the subordinate judiciary for land disputes, family matters, and criminal cases — face extended delays that undermine access to justice. Any improvement in Supreme Court efficiency through enhanced strength could, over time, reduce the number of cases that escalate upward from Bihar’s courts to the apex level, though the primary burden must be addressed at the district and High Court levels.
Way Forward
India needs a multi-pronged judicial reform strategy that goes beyond numerical expansion. First, Parliament should urgently consider the 229th Law Commission’s recommendation for a National Court of Appeal, which would structurally reduce the Supreme Court’s regular appellate burden. Second, the government should establish a transparent, time-bound process for filling judicial vacancies — a standing memorandum of procedure should specify deadlines for collegium recommendations and presidential warrants. Third, court working days must be increased to at least 230-240 per year through phased reform of vacation schedules. Fourth, investment in court infrastructure — digital case management, AI-assisted legal research, and additional courtrooms — must accompany any increase in judge strength. Fifth, the introduction of mandatory mediation and pre-litigation dispute resolution for specified categories of commercial and family disputes can reduce new filings. Finally, a comprehensive review of all laws that create litigation-generating provisions — particularly in revenue, land, and service matters — should be undertaken to reduce the volume of cases reaching courts.
Relevance for UPSC and SSC Examinations
UPSC GS-II covers the judiciary, constitutional bodies, and governance. This topic is directly relevant to questions on judicial independence, appointment of judges, pendency of cases, and the ordinance-making power. Essay paper may include themes like “Justice delayed is justice denied” or “Judicial reforms in India.” For SSC examinations, constitutional provisions under Articles 123, 124, and 136 are frequently tested. Key terms aspirants must remember: Article 123, Article 124(1), Supreme Court (Number of Judges) Act 1956, collegium system, NJAC, Special Leave Petition (Article 136), D.C. Wadhwa case, judicial pendency, National Judicial Data Grid, Law Commission recommendations.
