Every time the Supreme Court's docket swells past what its sitting judges can clear, the same question resurfaces: can the government simply add more judges by executive fiat? Reports of a Central government move to enlarge the Supreme Court's sanctioned judge strength through an ordinance — rather than through an ordinary Act passed by Parliament — have revived this question. It sits at the intersection of two distinct constitutional powers: Parliament's exclusive authority to fix the number of Supreme Court judges, and the President's emergency law-making power when the Houses are not in session.

What happened

According to reporting on the development, the Union government has moved to increase the number of judges the Supreme Court is authorised to have, using the ordinance route available when Parliament is not in session, rather than waiting for the next sitting to pass an amending Bill. The stated rationale offered in public discussion is the familiar one — a mounting backlog of pending matters, including admission hearings, special leave petitions and long-delayed appeals, which the existing bench strength cannot process quickly enough. Because the number of Supreme Court judges (beyond the Chief Justice) has for decades been fixed by ordinary parliamentary statute rather than by the constitutional text itself, altering that number required either a fresh Act of Parliament or, as apparently invoked here, an Ordinance carrying the same force as an Act until Parliament acts on it.

The law behind it

The starting point is Article 124 of the Constitution, which establishes the Supreme Court and states that it shall consist of a Chief Justice of India and, until Parliament by law prescribes a larger number, not more than a specified number of other judges. The crucial phrase is "until Parliament by law prescribes a larger number" — the framers deliberately left the exact judge strength open to legislative revision rather than freezing it in the constitutional text. This is why the actual number of Supreme Court judges has been raised repeatedly over the decades through ordinary legislation, most recently taking the sanctioned strength to its present level, without any constitutional amendment being required.

Ordinarily, that legislative revision happens through a Bill introduced, debated and passed by both Houses of Parliament under the normal law-making procedure. What makes the reported move unusual is the route: Article 123 empowers the President to promulgate Ordinances when Parliament is not in session and the President is satisfied that circumstances exist which render immediate action necessary. An Ordinance made under Article 123 has "the same force and effect as an Act of Parliament", but it is inherently temporary — it must be laid before both Houses when they reassemble and ceases to operate at the expiry of six weeks from reassembly unless approved earlier by resolutions of both Houses, or it may be withdrawn at any time by the President. In other words, an Ordinance is a stopgap: it lets the executive act with legislative force in the interregnum, but Parliament must ultimately ratify it through an actual Act, or it lapses and any structural change reverts.

Two other provisions round out the constitutional picture. Article 128 allows retired Supreme Court (or, with adaptation, High Court) judges to be requested to sit and act as judges of the Supreme Court with the previous consent of the President and the Chief Justice, a separate mechanism used to address workload pressure without permanently expanding sanctioned strength. Its High Court analogue, Article 224A, similarly allows retired High Court judges to be appointed to sit and act as High Court judges. These provisions matter for context because they show Parliament and the executive already possess a toolkit — ad hoc appointments of retired judges — distinct from permanently expanding the sanctioned bench strength, and the choice between the two carries different implications for judicial independence and continuity.

How we got here

When the Constitution commenced, the Supreme Court's strength (other than the Chief Justice) was modest — set at seven by the original constitutional text's contemplation before Parliament's power under Article 124 was exercised. Over the following decades, as the volume of appellate and constitutional litigation grew, Parliament amended the Supreme Court (Number of Judges) Act on several occasions — in the late 1950s, again in the late 1970s, in the mid-1980s, in 2008, and most recently in 2019 — each time through the ordinary legislative process of introduction, committee scrutiny where applicable, and passage by both Houses, followed by presidential assent under Article 111. Each increase reflected the same underlying pressure: rising pendency and a docket that had outgrown the sanctioned bench.

What distinguishes the present episode, if reports are accurate, is the resort to the ordinance mechanism instead of waiting for a parliamentary session to introduce and pass an amending Bill in the conventional manner. The Constitution does not bar this route — Article 123 draws no distinction based on subject matter, and an ordinance changing judge strength is, in form, no different from an ordinance on any other subject within Parliament's legislative competence. But because ordinances are, by constitutional design, temporary and dependent on subsequent parliamentary ratification, using this route for something as structurally significant as the composition of the apex court invites scrutiny of whether the urgency threshold under Article 123 — the President's satisfaction that immediate action was necessary — is being tested against a backlog problem that has, by most accounts, been building for years rather than arising suddenly.

What it means in practice

For litigants, an increase in sanctioned judge strength — however it is enacted — could in principle translate into more benches sitting simultaneously, faster listing of special leave petitions, and quicker movement through the admission stage that currently absorbs a large share of the Court's time. It does not, by itself, guarantee faster disposal, since new judges must still be appointed through the existing collegium process under Article 124 read with the judicial appointments jurisprudence, sworn in, and allocated work — a process that takes time regardless of when the sanctioned number changes on paper.

For law students and exam aspirants, this episode is a useful worked example of several linked doctrines: the distinction between constitutionally entrenched provisions and matters left to ordinary legislation (judge strength falls in the latter category); the temporary, conditional nature of ordinances under Article 123, including the requirement of parliamentary re-laying and the automatic lapse after six weeks of reassembly if not approved; and the separate, narrower tool of temporary ad hoc appointments of retired judges under Articles 128 and 224A as an alternative to permanent strength increases. It also illustrates why exam answers on "composition of the Supreme Court" must always flag that the number is not fixed by the Constitution's text but is left open to future legislative revision — a point frequently tested.

What to watch

The Ordinance, if indeed promulgated as reported, will need to be placed before Parliament in its next session and either replaced by an amending Act or allowed to lapse; how that process unfolds — whether it is converted into permanent legislation without objection, debated and modified, or allowed to expire — will determine whether the increased judge strength becomes a lasting feature of the Court's composition or a short-lived measure. Observers will also be watching whether the increased sanctioned strength is actually filled through fresh appointments in the near term, since a paper increase in numbers means little without judges being appointed to occupy the new seats, and whether the choice of the ordinance route over ordinary legislation becomes a point of parliamentary or judicial comment when the matter is formally taken up.