The Ordinance question before the SC

Judiciary via Ordinance

Syllabus Mapping: GS Paper II – Indian Constitution (Ordinance-making power, Independence of the Judiciary, Separation of Powers).

1. The Core Issue

Five new judges were sworn into the Supreme Court after a Presidential Ordinance raised the court’s sanctioned strength from 34 to 38. While two appointments filled existing statutory vacancies, three judges now occupy newly created seats that exist solely via an executive Ordinance rather than a parliamentary act.

2. Core Constitutional & Legal Framework

• Article 124(1): Explicitly mandates that the sanctioned strength of the Supreme Court is to be prescribed by Parliament (via law).
• Article 123: Grants the Executive the power to promulgate temporary Ordinances when Parliament is not in session. However, an Ordinance automatically lapses six weeks after Parliament reassembles unless replaced by a regular statute.
• The De Facto Doctrine (Gokaraju Rangaraju v. State of AP, 1981): Affirms that judicial acts and judgments delivered by a judge are legally valid even if their appointment or the post itself is later found to be defective or ceases to exist.

3. Landmark Judicial Precedents Cited

• D.C. Wadhwa v. State of Bihar (1986) & Krishna Kumar Singh v. State of Bihar (2017): A 7-judge Bench ruled that the ordinance-making power cannot be used as a parallel source of legislation. Repeated repromulgation of ordinances without legislative passage is a "fraud on the Constitution."
• Supreme Court Advocates-on-Record Association v. Union of India (2015): The NJAC case, which struck down the 99th Constitutional Amendment to preserve the judiciary’s independence from executive influence.

4. Key Analytical Takeaways (Mains Perspectives)

• Threat to Independence & Security of Tenure: Appointing judges to temporary, ordinance-created posts leaves their tenure dependent on the executive's willingness to introduce a regular bill or repromulgate the ordinance. This creates a structural obligation to the political executive, violating the "Basic Structure" of judicial independence.
• The "Calculated Risk" Loophole: The Collegium has relied on scheduled retirements (e.g., Justices Pankaj Mithal, J.K. Maheshwari) to naturally absorb the new appointees into regular, lawful vacancies before the Ordinance lapses. However, the junior-most appointee (Justice V. Mohana) faces a precarious tenure if Parliament fails to pass a replacing law by the deadline.