Supreme Court Seat Expansion via Ordinance: Constitutional Questions

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The President issued an Article 123 Ordinance to raise the sanctioned strength of the Supreme Court from 34 to 38 judges.
This decision has sparked a significant constitutional debate regarding the separation of powers and the correct process for expanding the court.

Following the Presidential Ordinance in May, 5 new judges took the oath of office to begin their tenure.
2 of these appointments filled existing lawful vacancies within the original 34-judge baseline.
The remaining 3 appointments rely entirely on the temporary seats created by the executive decree.

Article 124(1) clearly states that Parliament alone has the power to prescribe the final number of judges in the Supreme Court by law.
Article 123 gives the President the power to issue ordinances when Parliament is not in session.
An ordinance has the same force as an Act, but it expires 6 weeks after Parliament reassembles unless replaced by a Bill or disapproved by a resolution.

The Supreme Court currently has 37 active judges, and the Collegium intentionally left the 38th seat vacant.
Justice Pankaj Mithal retires on June 16, 2026, and Justice J.K. Maheshwari retires on June 28, 2026, which will free up 2 permanent seats for the new judges.
Justice V. Mohana was appointed directly from the Bar and sits in a vulnerable position on a temporary seat.
Justice Mohana cannot move to a permanent seat until Justice Sanjay Karol retires on August 22, 2026.
The Collegium is betting that a replacement Act will pass during the monsoon session before the ordinance lapses on August 22.

Using an ordinance to expand the court goes against past warnings by the Supreme Court against bypassing the legislature.
In D.C. Wadhwa vs State of Bihar (1986), the court ruled that governing through repeated ordinances is a fraud on the Constitution, a view supported by the 2017 Krishna Kumar Singh judgment.
Judges holding temporary seats created by the executive face a conflict of interest when deciding cases involving the government.
The ruling majority must pass the Bill to regularize these jobs, which compromises the court's neutral image when the Union Government appears as a litigant.
If Parliament rejects the Bill, the legal status of an active judge sitting on an expired post becomes completely untested.
Past decisions like Gokaraju Rangaraju (1981) protect rulings under the de facto doctrine, but a lapse leaves a judge on a post the law no longer recognizes.
In the 2015 NJAC case, the court protected its primary role in appointments, but it has now left its bench strength dependent on the executive.

Parliament must prioritize passing the replacement Bill early in the monsoon session to fix this constitutional gap.
Authorities should introduce a clear legal rule stating that future changes to the Supreme Court size must happen through regular parliamentary amendments.
The Collegium should adopt an internal rule to stop appointing judges to temporary seats until they are made permanent by law.
Judges on temporary seats should step away from high-profile constitutional cases involving the government until their positions are fully secure.