Strength and speculation

President Droupadi Murmu’s Ordinance increasing the strength of the Supreme Court to 38 judges has driven the conversation this past week. With four more vacancies added to the two pre-existing ones, speculation mounted that the Supreme Court Collegium would recommend names for all six vacancies last Friday. With the infrastructure in place, all eyes turn to the Collegium. The intent of this Ordinance can be viewed through two distinct scenarios.

First, six vacancies represent 15 percent of the Court’s total strength. Promulgated just after the Budget Session and before the Monsoon Session of Parliament, the Ordinance could lead to the appointment of judges from High Courts who might otherwise retire during this interim period. With four additional retirements scheduled through the remainder of 2026, the Collegium will likely recommend at least 10 judges by the end of the year. 

Second, a member of the current Collegium, Justice J.K. Maheshwari, retires in June 2026, making the last week of May his final working week in the Supreme Court. The Ordinance accelerates the appointment process, ensuring he can participate in selecting these six new judges before his departure. The Collegium’s choice of nominees depends on a cluster of rarely explicit considerations: seniority, regional representation, gender and social diversity, and, more recently, the prospect of a nominee becoming a future Chief Justice of India.

This moment offers the Collegium an opportunity to fulfill a long-standing demand for better gender representation. The Supreme Court currently has only one woman judge, Justice B.V. Nagarathna, who was elevated in August 2021 alongside Justices Bela Trivedi and Hima Kohli by a Collegium led by former CJI N.V. Ramana. The top court has not seen a single female appointment since. Justice Nagarathna retires next year in October 2027 and will serve as the first woman Chief Justice of India for a brief tenure of 36 days. 

Currently, three High Courts have women Chief Justices: Justice Sunita Agarwal of the Gujarat High Court, Justice Revati Mohite Dere of the Meghalaya High Court, and Justice Lisa Gill of the Andhra Pradesh High Court. Chief Justice Agarwal is the senior-most among them, and if elevated, her tenure could run until 2031. Justices Dere and Gill follow Chief Justice Agarwal in seniority. While the Collegium typically prioritises seniority as its primary metric, it can only recommend the aforementioned judges if it actively values diversity and longevity of tenure over strict ranking. However, elevating all three presents a trade-off, as it risks leaving no High Court in the country led by a woman Chief Justice.

By now, the Collegium has repeatedly demonstrated that seniority is not an absolute rule. Most recently, the Court elevated Justices Joymalya Bagchi and Vipul Pancholi despite their lower placement on the combined seniority list—10 judges were senior to Justice Bagchi, and 56 were senior to Justice Pancholi. Both are expected to serve as Chief Justices in May and October 2031, respectively.

Bypassing strict seniority allows the Collegium to secure ideal candidates who can offer longer tenures. The Collegium has also favoured appointing judges to the top court who are not leading a High Court. Appointing relatively junior judges is also a strategic view to expand the regional representation in the top court or pick a specific candidate who may leave an institutional imprint. 

Given the current lack of regional representation from the High Courts of Jammu & Kashmir, Jharkhand, Patna, Manipur, Meghalaya, Tripura, Orissa, Uttarakhand, and Sikkim, the Collegium is unlikely to ignore candidates whose parent high court is one of these. The Ordinance has paved the way for the Collegium to consider Chief Justices from the High Courts of Orissa, Punjab & Haryana, Chhattisgarh and Calcutta, whose Chief Justices are expected to retire this year. This pool includes Chief Justice Sujoy Paul of Calcutta High Court who retires in less than a month. 

With only six vacancies in this cohort, every selected name carries the weight of those left behind. A similar scenario occurred in 2021 when CJI Ramana recommended nine judges to the top court at once, an appointment pool that included three future Chief Justices. Using an Ordinance to expand judicial capacity ostensibly to curb pendency remains an unusual move in recent times, even as the real reasons for doing so remain shrouded in mystery.

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