Will increasing the strength of the SC solve the pendency problem?

The President promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026 on 16 May 2026, exercising powers under Article 123 of the Constitut...

What Happened

The President promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026 on 16 May 2026, exercising powers under Article 123 of the Constitution, raising the sanctioned strength of the Supreme Court from 34 to 38 judges (including the Chief Justice of India).
The Ordinance amends the Supreme Court (Number of Judges) Act, 1956, increasing the number of judges excluding the Chief Justice of India from 33 to 37.
The Union Cabinet had approved the proposal on 5 May 2026, ahead of the ordinance's promulgation.
As of 31 March 2026, the Supreme Court's total pendency stood at a record 93,143 cases.
Three sitting judges are due to retire in 2026, meaning the expanded sanctioned strength of 38 may not translate into a net increase in working strength unless the Collegium acts promptly to fill both existing vacancies and the four new posts.
Legal experts note that structural problems — culture of adjournments, delayed filing of replies, repeated procedural hearings, and absence of effective case management — are the primary drivers of pendency, not insufficient bench strength.

Static Topic Bridges

Supreme Court (Number of Judges) Act, 1956, and Article 124

Article 124(1) of the Constitution originally provided for a Supreme Court of a Chief Justice and not more than seven other judges, leaving enlargement to Parliament by law. The Supreme Court (Number of Judges) Act, 1956 provides the statutory mechanism through which Parliament determines the maximum number of sitting judges. This Act has been amended multiple times to progressively increase strength: 10 (1956) → 13 (1960) → 17 (1977) → 25 (1986) → 30 (2008) → 31 (2009) → 33 (2019) → 37 (2026), all figures excluding the Chief Justice.

Article 124(2) specifies that every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary.
The sanctioned strength of 38 (including CJI) through the 2026 ordinance is the highest in the court's history.
The distinction between sanctioned strength and working strength is crucial: even at 33, the court routinely operates with vacancies.

Connection to this news: The 2026 Ordinance marks the seventh upward revision of Supreme Court strength since 1956, each justified by rising case loads, yet historical data shows that strength increases alone have not produced sustained reductions in pendency.

Article 123 — Presidential Ordinance-Making Power

Article 123 of the Constitution empowers the President to promulgate ordinances when both Houses of Parliament are not in session and the President is satisfied that circumstances exist requiring immediate action. An ordinance has the same force and effect as an Act of Parliament but must be laid before both Houses when they reassemble and ceases to operate six weeks after the Houses reassemble, or earlier if disapproved.

An ordinance lapses unless replaced by legislation within six weeks of Parliament reassembling.
The President acts on the aid and advice of the Council of Ministers (Article 74) when exercising ordinance-making power.
The Supreme Court in R.C. Cooper v. Union of India (1970) and D.C. Wadhwa v. State of Bihar (1987) held that ordinances cannot be used to bypass Parliament's legislative authority.

Connection to this news: The use of the ordinance route — rather than waiting for Parliament — indicates the government's intent to treat judicial capacity as an urgent matter requiring immediate executive action, though the ordinance must be converted into legislation within six weeks of the next parliamentary session.

Collegium System and Judicial Appointments

The collegium system governs the appointment of Supreme Court and High Court judges in India. It emerged from three landmark Supreme Court judgments: S.P. Gupta v. Union of India (1981, First Judges Case), Supreme Court Advocates-on-Record Association v. Union of India (1993, Second Judges Case), and the Third Judges Case (1998). Under the current system, the Supreme Court collegium — comprising the Chief Justice and the four most senior puisne judges — recommends appointments, and the government can return names for reconsideration once but is bound by the collegium's reiteration.

The National Judicial Appointments Commission (NJAC), established by the 99th Constitutional Amendment (2014), was struck down by the Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India (2015) as violating judicial independence.
Delays between collegium recommendations and government notifications have historically kept working strength well below sanctioned strength.
As of May 2026, the Supreme Court had multiple vacancies even before the strength was raised to 38.

Connection to this news: Increasing sanctioned strength to 38 is only effective if the collegium recommends and the government notifies four additional judges promptly; delays in this process — a chronic feature of India's judicial appointment pipeline — could render the ordinance's intent hollow for years.

Judicial Pendency and Case Management

Judicial pendency refers to the accumulation of unresolved cases in courts beyond their disposal capacity. India's district courts have over 4.5 crore pending cases, High Courts have over 62 lakh, and the Supreme Court itself has crossed 93,000. Structural causes include: high rate of adjournments, inadequate use of case management technology, under-staffed judicial registries, and an absence of time-bound procedural norms.

The Law Commission of India has repeatedly recommended structural reforms — including a National Court of Appeals — to reduce the Supreme Court's workload.
The Supreme Court handles a large volume of Special Leave Petitions (SLPs) under Article 136, which critics argue should be filtered more rigorously.
The Judge-to-population ratio in India is approximately 21 per million, against the Law Commission's recommended 50 per million.

Connection to this news: The editorial debate around whether raising strength to 38 will solve pendency highlights that the answer depends as much on case management reform, filtering of SLPs, and efficient use of the new bench capacity as on the headcount itself.

Key Facts & Data

Supreme Court (Number of Judges) Amendment Ordinance, 2026: promulgated 16 May 2026 under Article 123.
New sanctioned strength: 38 judges including CJI (37 judges excluding CJI).
Previous sanctioned strength: 34 judges including CJI (33 excluding CJI).
Total Supreme Court pendency as of 31 March 2026: 93,143 cases (record high).
Cabinet approval date: 5 May 2026.
Statutory basis: Supreme Court (Number of Judges) Act, 1956.
Constitutional anchor: Article 124(1) — Parliament may by law prescribe the number of judges.
Previous strength increases: 10 (1956) → 13 (1960) → 17 (1977) → 25 (1986) → 30 (2008) → 31 (2009) → 33 (2019).
Three judges retiring in 2026 — net increase in working strength depends on timely collegium action.