Arshdeep Kaur*
Introduction
“Be you ever so high, the law is above you.”-Thomas Fuller, Gnomologia (1732).
Constitutional democracies are based on the idea that every public authority, no matter how powerful it is, must act within the limits set by the constitution. Therefore, extraordinary powers are expected to be used only in the circumstances for which they were designed.
On 16 May 2026, the President promulgated the Supreme Court (Number of Judges) Amendment Ordinances, 2026, increasing the sanctioned strength of the Supreme Court from thirty-four to thirty-eight. The ordinance was issued after the Union Cabinet already approved a Bill proposing the same amendment earlier that month. The government said the measure was needed to increase the Supreme Court’s capacity to deal with its growing backlog of cases. Soon after, on 27 May 2026, the Supreme Court Collegium recommended the appointment of five judges to the Court, and they were later appointed.
As Parliament’s Monsoon Session commenced on July 20, 2026, the ordinance was tabled before both Houses for consideration. However, even before Parliament takes it up, the manner in which the ordinance was introduced has already raised important constitutional concerns.
The Constitutional Scheme of Ordinance-Making
The Constitution grants ordinance-making powers upon both the Union and State executive through Article 123 and Article 213 of the Constitution of India respectively. Articles 123 and 213 empower the President and Governors, respectively, to promulgate an ordinance when both Houses of Parliament are not in session, and the circumstances exist which make it necessary to take immediate action. The ordinance possesses the same force and effect as an Act enacted by the legislature. Since law-making is primarily the responsibility of the legislature, the Constitution places an important limit on the ordinance-making power. An ordinance must be placed before the legislature when its meet again and will stop having effect after six weeks from the reassembly of Parliament unless the legislature approves it through the normal law-making process. This ensures that ordinances remain subject to legislative scrutiny and that the legislature continues to play the central role in law-making.
Threshold the Present Ordinance Against the Supreme Court’s Ordinance Jurisprudence
The present ordinance does not invite constitutional scrutiny because it increases the sanctioned strength of the Supreme Court. But the measures used to increase the strength are difficult to align with the principles governing the exercise of the ordinance-making power as developed in the Supreme Court’s jurisprudence. Therefore, the constitutional concern lies not in what objective is achieved, but in the means adopted to achieve it. This article examines the ordinance through interrelated questions, first whether the circumstances justified the exercise of the ordinance-making power, and second whether an ordinance altering the composition of the Supreme Court is capable of producing institutional consequences.
A. Immediate Necessity: The Constitutional Threshold for promulgating an Ordinance
The first question is whether the promulgation of the present ordinance was justified by circumstances requiring immediate legislative action. Answering this requires an examination of the constitutional limits governing the exercise of the ordinance-making power. In D.C. Wadhwa v. State of Bihar (1987) (hereinafter “D.C. Wadhwa”),the Supreme Court recognised that an ordinance is an extraordinary constitutional power, to be used when the President or Governor is satisfied that circumstances exist requiring immediate legislative action. The Court highlights a clear distinction between mere importance and the constitutional requirement of immediate necessity. In other words, a measure cannot be justified just because it is important; the circumstances must be so urgent that waiting for Parliament to reassemble is not a practical option. For example, theDefence of India Ordinance, 1962 shows the kind of circumstances for which the ordinance-making was designed. Promulgated during the Sino-Indian War, it responded to an unforeseen military emergency in which immediate action was considered necessary. In A.K. Roy v. Union of India (1987), this case examines the National Security Ordinance; the Supreme Court held that the President or Governors have discretion in deciding whether the circumstances are so urgent or not, but the court made it clear that this power must comply with the constitutional requirements and can be reviewed by the courts.
Viewed in this constitutional context, the present ordinance raises an important question. Judicial vacancies and the growing caseloads are serious institutional problems. But these are not new urgent developments. They already existed before Parliament adjourned; what then changed to make immediate action through an ordinance necessary? In other words, what turned a long-standing institutional problem into a constitutional emergency that justified using the extraordinary power under Article 123.
This is not to say that increasing the strength of the Supreme Court is unnecessary. A law may be important, but it alone does not justify issuing an ordinance under Article 123. If the need to increase the Court’s strength was already known and Parliament could have considered the proposal through the normal legislative process, then using an ordinance raises the same constitutional concern identified in the D.C. Wadhwa case: were the circumstances so urgent that they justified bypassing the ordinary law-making process and using an exceptional constitutional power?
B. Enduring Legal Consequences and the Temporary Nature of Ordinances
The second issue concerns the consequences that may continue even after an ordinance ceases to operate. This issue assumes particular importance where an ordinance is capable of producing consequences that are difficult to reverse if it later lapses or is disapproved. In such cases, the temporary nature of an ordinance may sit uneasily with the permanence of the consequences it creates.
InKrishna Kumar Singh v. State of Bihar (2017) (hereinafter “Krishna Kumar Singh”),the constitution bench rejected the view that legal consequences created under an ordinance either automatically survive or automatically come to an end when the ordinance lapses. Instead, the court held that it depends on the nature of the rights and the constitutional context of each case whether consequences continue or not after the ordinance lapses.
This distinction shows the fact that not all ordinances produce consequences of the same character. Some are temporary and easily reversible. For example, if an ordinance temporarily increases a customs duty or tax, the present position can ordinarily be restored once the ordinance ceases to operate. But also creates consequences that are more difficult to undo. Suppose any employment is created under the ordinance; it is difficult to return to the previous position in case the ordinance lapses or is disapproved. It was this kind of question highlighted by the court in Krishna Kumar Singh Case.
The present ordinance raises a similar constitutional question. If appointments are made to the Supreme Court posts created under the ordinance before Parliament has finally considered it, what happens if the ordinance is later disapproved or lapses? It may create two possibilities, each carrying its own constitutional implications.
The first possibility is that the appointments cease once the ordinance is disapproved or lapses. This would create serious constitutional and practical difficulties. Judges may already have assumed office, heard cases and delivered judgments. Reversing those appointments would raise difficult questions concerning judicial continuity, institutional stability and the legal status of decisions rendered during that period.
The second possibility is that the appointments continue despite the ordinance having ceased to operate. In that case, the ordinance would already have achieved its principal objective before Parliament had finally determined whether the measure should become law. Although Parliament would formally have the power to approve or reject the ordinance, its decision may no longer be capable of undoing the appointments already made. Its constitutional role would therefore risk becoming largely symbolic, as the ordinance’s most significant institutional consequence would already have taken effect. The same concern was highlighted in the Krishna Kumar Singh case that some ordinance which is temporary in nature can produce permanent consequences even it is disapproved or lapses.
Conclusion
The present ordinance therefore calls for closer constitutional scrutiny. The Supreme Court has itself laid down clear principles on the limited use of the ordinance-making power. However, when an ordinance affecting the Court was promulgated, those constitutional concerns remained unaddressed, while the process of recommending judges moved ahead. This is not to question the need for increasing the Court’s strength but to highlight that constitutional scrutiny should come before institutional action. If the standards laid down by the Court are to regain their meaning, they must be applied with the same consistency in every case, including those that concern the judiciary itself.
* The author is a second-year Law student at the Institute of Law, Nirma University, Ahmedabad. The author may be contacted at 25bal018@nirmauni.ac.in.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.