Ordinance to Increase the Number of Judges in Supreme Court is Wrong

Bumping up the strength of the Supreme Court is a very safe decision to take. Safe, because it leaves no one unhappy. The huge pile of pending cases before the Supreme Court is common knowledge, and logically, a team of 38 will make a larger dent than a team of 34.

The problem however, isn’t with the fact that the number of judges are being increased, it lies in the manner in which it being done. This increase in strength has come about by way of an Ordinance, which means it has by-passed the parliament (at least for the time being). Art. 123 of the Constitution confers the President with the power to promulgate (issue) ordinances. An ordinance can be promulgated only when there is need to take immediate action, and the parliament is not in session.

The pendency of cases is by no means a recent problem that requires “immediate action”. It requires action, but by no means does it call for an ordinance. Be that as it may, however benevolent the act may be, it does not make out the requirements of an Ordinance. The fact of the matter is, as long as the Constitution stands, the ends will not necessarily justify the means, there is a procedure for every action which must be followed.

From a purely political standpoint one may argue that the ruling political dispensation chose to adopt the route of an Ordinance fearing that this bill would not pass in the Parliament. But such an argument is wrong on a at least two counts. First, an Ordinance is not a complete by-pass of the Parliament, it is only a temporary escape. The current ordinance will have to be passed in the Parliament once it reassembles. Therefore, the test is not entirely dodged. Second, the argument that the present “bill” is being introduced as an Ordinance because the Constitution (131st Amendment) Bill (which sought to increase the number of seats in the Lok Sabha) could not go through the Lok Sabha, is wrong. That, was a Constitutional Amendment, it needed a Special Majority (two-thirds majority), this “bill” on the other hand needs only a Simple Majority.

TLDR – There is no explanation for why the strength of the Supreme Court has been increased through an Ordinance.