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A constitutional debate has emerged following the President's promulgation of an Ordinance under Article 123 increasing the sanctioned strength of the Supreme Court from 34 to 38 judges. While the move seeks to address mounting judicial workload and vacancies, it has raised important questions regarding judicial independence, separation of powers, security of tenure, and the limits of executive law-making.

What Happened?

Following the Ordinance, five new judges were appointed to the Supreme Court. Two appointments filled existing vacancies within the previously sanctioned strength of 34 judges. However, the remaining three appointments were made against the additional posts created through the Ordinance.

The controversy arises because these new posts are temporary unless Parliament subsequently enacts a law replacing the Ordinance.

Constitutional Provisions Involved

Article 124(1)

Article 124(1) provides that the number of Supreme Court judges shall be determined by Parliament through law. Traditionally, any increase in the Court's strength has been made through parliamentary legislation.

Article 123

Article 123 empowers the President to promulgate Ordinances when Parliament is not in session. An Ordinance has the same force as an Act of Parliament but ceases to operate six weeks after Parliament reconvenes unless approved through legislation.

Thus, while the Ordinance is constitutionally valid, questions arise regarding its use to alter the composition of the apex judiciary.

Constitutional Concerns

Judicial Independence and Separation of Powers

The primary concern relates to the independence of the judiciary, a basic feature of the Constitution.

Critics argue that when judges occupy posts created by a temporary executive measure, an appearance of dependence on the political executive may arise. Since Parliament must subsequently approve the expansion, questions emerge regarding the perception of judicial detachment from the government.

Ordinance-Making and Judicial Precedent

The issue is particularly sensitive because the Supreme Court itself has repeatedly cautioned against excessive reliance on Ordinances.

In D.C. Wadhwa v. State of Bihar (1986), the Court held that repeated promulgation of Ordinances amounted to a "fraud on the Constitution."

Later, in Krishna Kumar Singh v. State of Bihar (2017), a seven-judge Bench emphasized that the Ordinance power cannot become a parallel source of legislation.

The current development therefore raises questions about whether the executive should alter the Court's strength through a temporary measure rather than regular parliamentary legislation.

The Collegium's Calculated Approach

The Supreme Court Collegium appears to have factored judicial retirement schedules into its recommendations.

• Justice Pankaj Mithal and Justice J.K. Maheshwari are due to retire in June 2026.
• Their retirements will create two permanent vacancies under the original sanctioned strength.

This would allow two of the newly appointed judges to occupy regular positions even if the Ordinance lapses.

However, one newly appointed judge remains dependent on the continued existence of the Ordinance-created posts until another retirement creates a permanent vacancy, making the timing of parliamentary approval crucial.

Possible Legal Implications

If Parliament passes a law replacing the Ordinance, the issue effectively ends.

However, if Parliament does not approve the measure:

• The sanctioned strength would revert to 34.
• Questions could arise regarding the status of judges appointed against Ordinance-created posts.
• Such a situation would be unprecedented in Indian constitutional history.

Although past rulings such as Gokaraju Rangaraju v. State of Andhra Pradesh protect judicial decisions under the de facto doctrine, uncertainty regarding the status of such appointments could create institutional complications.

Significance

The episode highlights the delicate balance between:

• Judicial independence and executive authority.
• Parliamentary supremacy in law-making.
• Efficient court administration and constitutional propriety.
• Separation of powers among constitutional organs.

While the government is expected to secure parliamentary approval for the increase in strength, the debate underscores the broader principle that judicial institutions must not only remain independent but also appear independent.

Conclusion

The Supreme Court's acceptance of appointments to Ordinance-created posts represents a significant constitutional moment. Although intended to address growing judicial workloads, the move has triggered concerns regarding executive influence, security of tenure, and institutional autonomy. The long-term resolution lies in early parliamentary regularization of the expanded strength, thereby reaffirming both judicial independence and constitutional propriety.