Supreme Court Bench Expansion Through Ordinance: Constitutional Concerns and Institutional Implications
Context
The Supreme Court of India has become the centre of a constitutional debate following the promulgation of a Presidential Ordinance under Article 123 that increased the sanctioned strength of the Court from 34 to 38 judges. The development has raised important questions regarding judicial independence, separation of powers, and the constitutional process for determining the composition of the apex court.
Judicial Strength Enhancement Through Ordinance
What Happened?
- Following the promulgation of the Ordinance, five additional judges were sworn into the Supreme Court.
- Two of these judges occupied already sanctioned permanent vacancies within the existing strength of 34 judges.
- The remaining three judges were appointed against newly created posts that exist solely because of the temporary Ordinance.
Constitutional Framework Involved
Article 124(1)
- Empowers Parliament to determine the number of judges in the Supreme Court through legislation.
- Bench strength is therefore intended to be fixed by statutory law rather than executive action.
Article 123
- Authorises the President to promulgate Ordinances when Parliament is not in session.
- Such Ordinances possess the force of law but cease to operate six weeks after Parliament reconvenes unless approved through legislation.
The Collegium’s Institutional Strategy
The Supreme Court presently functions with 37 judges and appears to have planned appointments carefully around upcoming retirements.
Transitioning Temporary Appointees into Permanent Posts
- Retirements scheduled in the coming months will reopen regular sanctioned positions.
- These vacancies may enable judges appointed under the Ordinance to shift into permanent seats without interruption.
The Position of the Newest Appointee
- One of the recently appointed judges remains dependent on a future vacancy for absorption into a permanent post.
- Until such a vacancy arises, the judge’s position continues to rely upon the validity of the Ordinance-created seat.
Dependence on Legislative Approval
- The success of this arrangement hinges on Parliament passing a replacement law before the Ordinance lapses.
- Failure to enact such legislation could generate unprecedented constitutional complications.
Major Constitutional and Institutional Concerns
Dilution of Judicial Warnings Against Ordinance Culture
- The Supreme Court has repeatedly cautioned against excessive reliance on executive lawmaking.
- Allowing expansion of its own strength through an Ordinance may appear inconsistent with those principles.
Illustration
- In the D.C. Wadhwa v. State of Bihar (1986) and Krishna Kumar Singh v. State of Bihar (2017), the Court criticised the misuse of Ordinances as a substitute for the legislative process.
Perceived Weakening of Separation of Powers
- Judges occupying posts created through executive action may face concerns regarding institutional independence.
- Public confidence may be affected when the same government responsible for regularising those posts appears before the Court in major disputes.
Illustration
- Executive involvement in creating and regularising judicial posts may create an appearance of dependence, even if judicial impartiality remains unaffected.
Legal Uncertainty if the Ordinance Expires
- If Parliament fails to pass replacement legislation, the status of judges appointed to Ordinance-created seats would become uncertain.
- Such a situation would be unprecedented in Indian constitutional practice.
Illustration
- While the de facto doctrine protects judgments delivered by judges acting under colour of authority, the continued validity of a judicial office itself could become contentious.
Implications for Judicial Independence
- The judiciary has historically sought to maintain autonomy from executive influence.
- Temporary changes in bench strength through executive action may create concerns regarding institutional self-reliance.
Illustration
- The principles established in the Second Judges Case and reaffirmed in the NJAC judgment emphasise the importance of judicial independence in appointments and institutional functioning.
The Way Forward
Ensuring Timely Legislative Approval
- Parliament should enact a permanent law confirming the revised judicial strength at the earliest opportunity.
- This would eliminate uncertainty surrounding the newly created posts.
Restricting Temporary Alterations to Bench Strength
- Future changes in the size of the Supreme Court should ideally be carried out only through parliamentary legislation.
- This would strengthen constitutional propriety and democratic accountability.
Developing Institutional Safeguards
- The Collegium may consider avoiding appointments to purely temporary positions until statutory approval is secured.
- Such an approach would minimise future constitutional ambiguities.
Preserving Public Confidence
- Appropriate safeguards should be adopted to ensure that questions regarding temporary judicial posts do not affect the credibility of judicial decision-making.
- Maintaining both actual and perceived independence remains essential.
Conclusion
The temporary expansion of the Supreme Court through an Ordinance has created a rare constitutional challenge. Although future retirements and legislative action may eventually regularise the situation, the episode underscores the importance of preserving judicial independence, respecting constitutional procedures, and maintaining a clear separation between the judiciary and the executive. A durable solution lies in ensuring that structural changes to the apex court are firmly rooted in the legislative process.
Source : The Hindu