Supreme Court Judge Strength Raised to 38 via Presidential Ordinance
The President promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026, notified in the Gazette of India on May 16, 2026.
The ordinance amends the Supreme Court (Number of Judges) Act, 1956 by substituting "thirty-three" with "thirty-seven" — raising the sanctioned strength of puisne judges from 33 to 37.
Total judicial strength of the Supreme Court now stands at 38 (37 puisne judges + 1 Chief Justice of India).
The move is aimed at addressing the Supreme Court's mounting case backlog, which stands at approximately 95,000 pending cases.
The Union Cabinet had cleared a corresponding bill on May 5, 2026; the ordinance was promulgated because Parliament was not in session. The bill is to be placed before Parliament in the upcoming monsoon session.
Article 123: President's Ordinance-Making Power
Article 123 of the Constitution empowers the President to promulgate ordinances when Parliament (or at least one House) is not in session and the President is satisfied that circumstances exist which render immediate action necessary. An ordinance has the same force as an act of Parliament, but it is a temporary measure — it must be laid before both Houses upon reassembly and ceases to operate six weeks after Parliament reassembles unless approved by a resolution. Notably, the six-week clock starts from the later date if the two Houses reassemble on different dates.
Parliament was not in session when urgency arose to add judges; the President therefore exercised ordinance power under Article 123, amending the 1956 Act. A replacement bill is constitutionally mandatory within six weeks of Parliament's reassembly.
Article 124: Establishment and Constitution of the Supreme Court
Article 124(1) of the Constitution provides that there shall be a Supreme Court of India consisting of a Chief Justice of India and such number of other judges as Parliament may by law prescribe. This means the sanctioned strength of the Court is not fixed in the Constitution itself — it is left to Parliament (or, via ordinance, the President) to determine by ordinary legislation.
The ordinance directly amends the 1956 statute made under Article 124(1). The number 38 is not in the Constitution — it is now in the amended Act.
Collegium System and Judicial Appointments
The Collegium system — India's mechanism for appointing and transferring superior court judges — evolved through judicial interpretation rather than a constitutional text. The three "Judges Cases" (1981, 1993, 1998) progressively transferred primacy in appointments from the executive to a collegium of senior judges. The 1993 second Judges Case established that the Chief Justice of India's recommendation, made in consultation with the two senior-most judges, is binding on the executive.
Increasing sanctioned strength is necessary but not sufficient — actual strength depends on vacancies being filled through the collegium process. The ordinance adds 4 sanctioned posts; filling them requires collegium recommendations and presidential appointment.
Judicial Pendency Crisis
India faces one of the world's largest judicial backlogs. The Supreme Court alone has approximately 95,000 pending cases; District Courts hold over 4 crore pending cases nationally. Pendency arises from a combination of judge vacancies, infrastructure shortfalls, high litigation rates, and procedural delays.
Key Details
- India has roughly 21 judges per 10 lakh population — far below the Law Commission's recommendation of 50 per 10 lakh (14th Law Commission Report, 1958).
- The Supreme Court currently operates multiple benches simultaneously (Constitution benches, regular benches, vacation benches) to manage load.
- Increasing bench strength enables formation of additional benches across constitutional, civil, and criminal jurisdictions.
- The Supreme Court (Number of Judges) Act, 1956 is the primary statute governing sanctioned strength.
The stated rationale for this ordinance is directly the pendency crisis at the apex court level — 4 additional judges can constitute 2 additional benches, significantly increasing hearing capacity.
- Ordinance: Supreme Court (Number of Judges) Amendment Ordinance, 2026 — gazetted May 16, 2026.
- Amendment to: Supreme Court (Number of Judges) Act, 1956.
- Change: Sanctioned puisne judges: 33 → 37; Total (including CJI): 34 → 38.
- Constitutional authority: Article 123 (President's ordinance power).
- Constitutional basis for judge strength: Article 124(1) — "as Parliament may by law prescribe."
- Pending cases (Supreme Court): ~95,000 as of May 2026.
- Original (1950) Supreme Court strength: 8 judges (CJI + 7).
- Re-promulgation bar: Krishna Kumar Singh v. State of Bihar (2017) — seven-judge bench.
- NJAC struck down: SC Advocates-on-Record Association v. Union of India (2015) — 99th Amendment declared unconstitutional.
- Replacement bill: To be introduced in the Monsoon Session, 2026.