The Ordinance Question Before the Supreme Court

Context

• The Collegium accepted appointments to four additional Supreme Court judgeships created through a Presidential Ordinance.
• The Ordinance increased the sanctioned strength of the Supreme Court from 34 to 38 judges.
• The move raises questions regarding:
  • Judicial independence
  • Security of tenure
  • Institutional distance from the executive

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Background

The U.S. Example (1937)

• U.S. President Franklin D. Roosevelt proposed expanding the nine-judge Supreme Court.
• He sought an additional justice for every judge above 70 years who refused retirement, up to a total of 15 judges.
• The Senate Judiciary Committee described the proposal as:
  • An independent court becoming a “fearless court”
  • One not bent “out of fear or sense of obligation to the appointing power”
• The proposal was rejected:
  • 70 votes against
  • 20 votes in favour

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Recent Developments in India

Increase in Supreme Court Strength

• On May 16, a Presidential Ordinance increased the sanctioned strength from 34 to 38 judges.
• Five judges recently took oath.

Composition of Appointments

• Four were Chief Justices of High Courts.
• One was elevated directly from the Bar.

Vacancy Position

• At the time of promulgation:
  • Court was functioning at 32 judges.
  • Two lawful vacancies existed.
• Two appointments filled the existing vacancies.
• Three appointments occupied the newly created Ordinance-based posts.

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Constitutional Position

Article 124

• Parliament may prescribe the number of Supreme Court judges.
• Article 123 empowers the President to promulgate Ordinances when Parliament is not in session.

Concern

• Ordinances are temporary measures.
• They remain subject to parliamentary approval.
• Dependence on Ordinance-created posts raises questions about judicial independence.

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Ordinance-Made Seats

Issue

The newly created judgeships exist because of an Ordinance rather than an enacted law.

Implication

• The positions continue only so long as the Ordinance survives.
• The executive retains the power to withdraw the Ordinance.

Concern

• Judges occupying such posts may appear dependent upon executive action.

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A Test of Principle

NJAC Judgment (2015)

Supreme Court Advocates-on-Record Association v. Union of India

• Constitution Bench struck down:
  • 99th Constitutional Amendment
  • National Judicial Appointments Commission (NJAC)

NJAC Composition

• Chief Justice of India
• Two senior-most judges
• Union Law Minister
• Two eminent persons

Court’s Reasoning

• Judicial independence is a basic feature of the Constitution.
• Executive participation in appointments could compromise judicial independence.

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Collegium’s Acceptance of Ordinance Posts

Contradiction Raised

• The Supreme Court had previously defended judicial independence against executive influence.
• Yet it accepted appointments to seats created through an Ordinance whose future remains uncertain.

Additional Concern

• The executive can withdraw an Ordinance before Parliament acts upon it.

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Supreme Court’s Earlier Position on Ordinances

D.C. Wadhwa v. State of Bihar (1986)

Principle

• Ordinances cannot become a parallel source of legislation.
• Repeated re-promulgation is unconstitutional.

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Krishna Kumar Singh v. State of Bihar (2017)

Seven-Judge Bench

Held that:

• Ordinances are temporary legislative measures.
• Rights and consequences arising from a lapsed Ordinance may not automatically survive.
• Re-promulgation undermines constitutional principles.

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Legal Uncertainty

If Parliament Does Not Replace the Ordinance

Consequences

• Sanctioned strength would revert from 38 to 34.
• Questions may arise regarding:
  • Status of judges appointed to Ordinance-created posts
  • Validity of such appointments
  • Future functioning of the Court

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Current Numerical Position

Present Strength

• Court currently functions with 37 judges.

Future Changes

Justice J.B. Pardiwala

• Retires on August 16.
• Court strength would fall to 36.

Justice Sanjay Karol

• Retires on August 22.
• One Ordinance-created post may then be absorbed into a regular vacancy.

Justice Pankaj Mithal

• Retires on June 16, 2027.
• Court strength would further reduce.

Justice Sudhanshu Dhulia

• Retires on November 29, 2027.
• Creates another vacancy after Ordinance expiry.

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Position of Justice V. Mohana

Special Situation

• Elevated directly from the Bar.
• Occupies an Ordinance-created position.

Possible Outcome

• Can reach a regular statutory vacancy only upon Justice Sanjay Karol’s retirement.
• If the Ordinance lapses before that, uncertainty may arise regarding the position.

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The Larger Question

Core Issue

The issue is not whether Parliament will eventually enact a law replacing the Ordinance.

Fundamental Concern

• The Court has linked:
  • Its institutional independence
  • Judges’ security of tenure

to the goodwill of:

• The Executive
• Parliament

Broader Principle

Judicial independence is not only the power to say “No” to the executive but also maintaining complete freedom from any sense of obligation to it.