Examine the constitutional propriety of using the Ordinance route to change the composition of the Supreme Court.

Article 123 lets the President make law when Parliament is not in session, but only when circumstances require "immediate action". In May 2026, an Ordinance raised the number of Supreme Court judges other than the CJI from 33 to 37 [1]. This used an emergency power to reshape the apex court. The step was legally valid, but whether it was proper is open to question.

Constitutional basis: legally valid

• Under Art. 124(1), Parliament can fix the number of judges by ordinary law [4]. An Ordinance has the force of an Act, so the route was within the executive's competence.
• After Krishna Kumar Singh (2017), courts can review the President's satisfaction that an Ordinance was needed. No such challenge was made here.

Arguments for propriety

• Urgency: the Cabinet cited "speedy justice" amid mounting pendency [2], and Parliament was in recess.
• Quick results: five judges were appointed on 1 June 2026 [3], about seven weeks before the Bill was even introduced [1].
• Ratification: the Lok Sabha passed the Bill on 3 August and the Rajya Sabha on 5 August [1]. The Ordinance was not re-promulgated, which avoids the abuse condemned in D.C. Wadhwa (1987).

Concerns over propriety

• Fait accompli: an Ordinance can lapse, but a judge can be removed only by impeachment under Art. 124(4) [4]. Once the new seats were filled, rejecting the Bill was no longer a practical option for Parliament.
• Scrutiny bypassed: the PRS record of the Bill mentions no Standing Committee referral [1]. Whether four was the right number was never examined.
• Separation of powers: the Court's size shapes how benches are formed. Changing it by executive decree, without debate, sits uneasily with the judicial independence reasoning that led the Court to strike down the executive-weighted NJAC [5].
• Weak urgency test: pendency is chronic, not sudden, and retirements at 65 can be foreseen [4]. The need could have been planned for a parliamentary session.

In sum, the Ordinance was constitutionally valid and Parliament later approved it, but Parliament's role shrank to approving a decision after it had taken effect. In future, changes to the Court's structure should follow a Bill-first convention with committee scrutiny. Ordinances should be kept for genuine emergencies, as Krishna Kumar Singh intended, and vacancies should be planned ahead under the Memorandum of Procedure. This would serve both speedy justice and parliamentary deliberation, keeping the separation of powers that underpins the basic structure.