“Adding judges to a court drowning in 93,000 cases is necessary — but it cannot substitute for the structural reforms that prevent those cases from arriving in the first place.”
On 16 May 2026, President Droupadi Murmu promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026, raising the sanctioned strength of Supreme Court judges (excluding the CJI) from 33 to 37. Including the Chief Justice, the total strength rises from 34 to 38. The ordinance was notified in the Gazette of India on the same date.
The change amends Section 2 of the Supreme Court (Number of Judges) Act, 1956 and was promulgated under Article 123 of the Constitution (presidential ordinance power). Cabinet approval came on 5 May 2026, chaired by PM Narendra Modi. Union Law Minister Arjun Ram Meghwal announced the promulgation.
The immediate trigger: as of 31 March 2026, the Supreme Court’s total pendency stood at a record 93,143 cases. Working strength at the time was only 32 judges (including CJI) — meaning two vacancies already existed even before this expansion.
⚖️ Constitutional & Statutory Framework
Article 124(1) provides that the Supreme Court shall consist of a Chief Justice and “not more than seven other Judges” — unless Parliament by law prescribes a larger number. This deliberate open-endedness allows Parliament to scale judicial capacity through ordinary legislation rather than constitutional amendment.
The Supreme Court (Number of Judges) Act, 1956 has been amended progressively as caseloads grew:
| Year | Strength (excl. CJI) | Total (incl. CJI) | Mechanism |
|---|---|---|---|
| 1950 (Original Constitution) | 7 | 8 | Constitution, Art. 124(1) |
| 1986 | 17 | 18 | Amendment to 1956 Act |
| 2008 | 25 | 26 | Amendment to 1956 Act |
| 2019 | 33 | 34 | Amendment to 1956 Act |
| 2026 (Ordinance) | 37 | 38 | Ordinance under Art. 123 |
When Parliament is not in session and there’s an urgent need for legislation, the President can issue an Ordinance — it has the same legal force as a parliamentary law but is temporary. Think of it as a stopgap law with an expiry date: it must be converted into a proper Act within 6 weeks of Parliament reassembling, or it lapses. The government used this route because Parliament was in recess but the court’s pendency crisis needed immediate action.
Article 123 ≠ Article 213. Article 123 is the President’s ordinance power (Central Government). Article 213 is the Governor’s ordinance power (State Governments). Both require the respective legislature to be not in session. Also: the 2026 ordinance changes the strength from 33 to 37 (excluding CJI) — total becomes 38. Many questions ask about the total including CJI. The previous strength was 34 total, not 33.
📌 The Pendency Crisis: Why the Expansion Was Necessary
India’s judicial pendency crisis runs across all three tiers of the court system:
Supreme Court: As of 31 March 2026, pendency reached a record 93,143 cases — the majority being Special Leave Petitions (SLPs), which allow parties to challenge any court or tribunal decision directly at the Supreme Court. Working strength was only 32 judges (including CJI), with two posts already vacant.
High Courts: Collectively carry approximately 60 lakh (6 million) pending cases. Vacancy levels have historically ranged between 30–40% of sanctioned strength, with 331 judicial vacancies reported in 2024. Some High Courts (Telangana, Patna, Calcutta) have had over half their posts vacant at various points.
District / Subordinate Courts: The deepest crisis — over 3.6 crore (36 million) pending cases. Approximately 21% of judicial posts were vacant in subordinate courts at one point, with Bihar, Haryana, and Jharkhand showing especially high vacancy ratios.
India’s judge-to-population ratio is among the lowest of major democracies. The Law Commission of India has historically recommended 50 judges per million population; India’s current ratio across all courts is approximately 21 judges per million.
Three Retirement Triggers: Justices J.K. Maheshwari, Pankaj Mithal, and Sanjay Karol are scheduled to retire later in 2026. Without the expansion, these retirements would have reduced the working strength below 30 — making the increase in sanctioned strength doubly important to maintain effective bench strength.
👤 How Supreme Court Judges Are Appointed: The Collegium System
Supreme Court judge appointments operate through the collegium system — a judge-made mechanism with no direct textual basis in the Constitution, which evolved through three landmark cases:
First Judges Case — S.P. Gupta vs Union of India (1981): The Supreme Court held that “consultation” in Article 124(2) did not mean “concurrence.” The executive (President/Government) had primacy in judicial appointments.
Second Judges Case — Supreme Court Advocates-on-Record Association vs Union of India (1993): A nine-judge bench overruled the 1981 judgment. “Consultation” was held to mean “concurrence” — the CJI’s recommendation is binding. The collegium system was created, with appointment power vested in the CJI and two seniormost judges.
Third Judges Case — Presidential Reference (1998): President K.R. Narayanan sought the court’s opinion on collegium functioning. The court expanded the collegium for Supreme Court appointments to the CJI and four seniormost judges (from two). For High Court appointments, the collegium remains CJI + two seniormost judges.
Current Procedure: The SC Collegium (CJI + 4 seniormost judges) recommends names → Law Ministry → PM → President. The government may return the recommendation once for reconsideration — but if the collegium reiterates the name, the appointment is constitutionally binding.
Appointment Qualifications (Article 124(3)): An Indian citizen who is either (a) a High Court judge for at least 5 years, (b) an advocate in High Courts for at least 10 years, or (c) a “distinguished jurist” in the President’s opinion (never used in practice).
Retirement: SC judges retire at age 65. HC judges retire at 62.
Impeachment (Article 124(4)): Removal only by an address by both Houses in the same session with a special majority (majority of total membership + 2/3rds of members present and voting), followed by a presidential order. Governed by the Judges Inquiry Act, 1968. No Supreme Court judge has ever been impeached in India.
📖 The NJAC Episode: Judicial Independence vs. Executive Accountability
Parliament passed the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014, replacing the collegium with a six-member commission: CJI, two seniormost SC judges, the Union Law Minister, and two eminent persons nominated by a committee of the CJI, PM, and Leader of Opposition.
The NJAC was struck down in Supreme Court Advocates-on-Record Association vs Union of India (2015) — the Fourth Judges Case — by a five-judge Constitution Bench. The court held that the NJAC undermined the independence of the judiciary, which is a part of the basic structure doctrine. The Law Minister’s inclusion gave the executive a direct veto over judicial appointments, compromising the separation of powers. Justice J. Chelameswar was the sole dissenting judge, arguing that the collegium system lacked accountability and transparency.
The NJAC episode remains one of the most significant constitutional confrontations between the executive and judiciary in India’s history — and the collegium’s lack of transparency and accountability (which motivated the NJAC in the first place) remains an unresolved institutional challenge.
The collegium system gives judges the exclusive power to appoint judges — which protects judicial independence but eliminates democratic accountability. The NJAC sought to restore a degree of executive involvement but was struck down as unconstitutional. Is there a constitutional design that can balance both? Justice Chelameswar’s lone dissent in the Fourth Judges Case argued that the collegium’s opacity was precisely the problem — and that a transparent commission with judicial majority (but not exclusive judicial control) could achieve both independence and accountability. Has India found an answer to this dilemma?
🌍 Concerns and Limitations of the Expansion
Four judges cannot clear 93,000 cases: Legal experts note that structural problems — the culture of adjournments, delayed filing of replies, multiple hearings for procedural matters, and the absence of effective case management systems — are the primary drivers of pendency, not insufficient bench strength.
Retirements offset gains: With three judges (Justices Maheshwari, Pankaj Mithal, Sanjay Karol) retiring in 2026, even the expanded bench of 38 may not represent a net increase in working strength unless the Collegium acts promptly to fill both existing vacancies and new posts.
The district court crisis remains untouched: Over 3.6 crore pending cases at subordinate courts will not be affected at all by this expansion. Former Law Secretaries have recommended regional Courts of Appeal between High Courts and the Supreme Court, allowing the apex court to focus on pure constitutional questions rather than being a first appellate recourse for all SLPs.
High Court vacancies persist: Until the ~331 High Court vacancies are filled, the flow of fresh appeals to the Supreme Court will continue regardless of apex court strength. The pendency crisis is fundamentally a systemic problem requiring reform at every tier simultaneously.
Click to flip • Master key facts
For GDPI, Essay Writing & Critical Analysis
5 questions • Instant feedback
The 2026 ordinance raises the strength from 33 to 37 (excluding CJI), making the total including CJI equal to 38. The previous total was 34 (CJI + 33). This is the second expansion under the current government, after the 2019 increase.
Article 123 empowers the President to promulgate ordinances when Parliament is not in session. Article 213 is the equivalent Governor’s power at state level. Article 124(1) is about SC composition; Article 356 is about President’s Rule.
The Second Judges Case (SCAORA vs Union of India, 1993) — decided by a 9-judge bench — overruled the 1981 First Judges Case. It held that consultation means concurrence, creating the collegium with CJI + 2 seniormost SC judges. The 1998 case expanded it to 5 members.
Supreme Court judges retire at age 65. High Court judges retire at age 62. This 3-year difference is a frequently tested distinction. The President and Governor serve fixed 5-year terms with no age-based retirement.
Justice J. Chelameswar was the sole dissenting judge in the Fourth Judges Case (2015). He argued that the collegium lacked accountability and transparency, and upheld the NJAC as a constitutional mechanism. All four other judges struck down the NJAC.
