Ordinance lifts SC strength to 38, Collegium likely to begin deliberations

On Saturday, President Droupadi Murmu promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026. It raises the sanctioned strength of the top court from 34 to 38 judges. Section 2 of the Supreme Court (Number of Judges) Act, 1956 now reads “thirty-seven” puisne judges in place of “thirty-three”, besides the Chief Justice.

The Ordinance was notified in the Gazette of India on 16 May. It comes 11 days after the Union Cabinet cleared the corresponding Bill. The Bill was expected to be taken up in the upcoming Monsoon session of Parliament. The Budget session closed on 2 April. The government invoked Article 123 of the Constitution which empowers the President to legislate by Ordinance—on satisfaction that immediate action is necessary.

An inside story reported that CJI Surya Kant had written to the Union government in February seeking the expansion. The CJI writing to the Union government is not unusual. Previously, the sitting strength was increased to 34 judges at the request of former Chief Justice Ranjan Gogoi. CJI Surya Kant’s letter cited pendency and the need to constitute Constitution Benches more regularly. The same report says the Collegium will begin consultations on 18 May to identify potential recommendees. The Court’s working strength is 32, with two existing vacancies and four further retirements due later in the year.

The Ordinance question

The Ordinance has the same force as an Act of Parliament. It must be laid before both Houses within six weeks of their reassembly. It will lapse if not enacted. In Krishna Kumar Singh v State of Bihar (2017), a seven-judge Bench held the ordinance-making power to be amenable to judicial scrutiny. The Court has not, however, treated the choice between Bill and Ordinance as itself justiciable. That is so when the subject is within Parliament’s competence.

What distinguishes this Ordinance is its peg. The Cabinet had on 5 May approved a Bill for the next session of Parliament. Eleven days later, the same proposal moved as an Ordinance. The press release issued on 5 May offers a single rationale: pendency requires the Court to “function more efficiently and effectively”. It records no emergent circumstance ripening in the days that followed.

The structural question

The Supreme Court Observer has noted that pendency trends do not track sanctioned strength in any predictable way. As of 30 April, pendency stood at a record 92,823 cases. The 229th Report (2009) of the Law Commission, authored under Justice A.R. Lakshmanan argued that adding judges alone would not address pendency or access. It recommended a Constitution Bench at Delhi and four regional cassation Benches. The Full Court rejected the proposal on 18 February 2010. A 2016 writ petition seeking a National Court of Appeal, referred to a Constitution Bench, remains pending.

The 2019 expansion took the strength to 34. Vacancies persisted at every previous expansion. The four seats the Ordinance creates will translate into faster disposal on one condition. The Collegium and the Union must act with the speed they have shown on the Ordinance itself in making and clearing its recommendations in time.  The first test arrives today.