The Ordinance Question Before the Supreme Court

After Reading This Article You Can Solve This UPSC Mains Model Question:

Judicial independence is not merely about freedom from executive interference but also about maintaining the appearance of institutional autonomy. Examine in the context of the recent debate over Supreme Court judges appointed against Ordinance-created posts. 15 Marks (GS-2, Polity)

Context

The Union Government recently promulgated an Ordinance increasing the sanctioned strength of the Supreme Court from 34 to 38 judges. Based on this Ordinance, five new judges were appointed, of whom three occupied posts created solely through the Ordinance. The development has triggered concerns regarding judicial independence, security of tenure and the judiciary’s relationship with the executive.

Introduction

Judicial independence forms part of the Basic Structure of the Constitution and is essential for maintaining the separation of powers. While the Constitution permits Ordinances to have the force of law, the appointment of judges to Ordinance-created posts raises important questions regarding the judiciary’s institutional autonomy and its perceived distance from executive influence.

Why Has the Issue Become Controversial?

The controversy does not concern the merit of the appointed judges but the constitutional mechanism through which the additional posts were created.

1. Ordinance-Created Judicial Posts
2. The President promulgated an Ordinance under Article 123 increasing Supreme Court strength from 34 to 38.
3. Three of the newly appointed judges occupy posts that exist solely because of the Ordinance.
4. Unlike a parliamentary statute, an Ordinance is temporary and may lapse if not approved by Parliament.
5. Constitutional Provisions Involved
6. Article 124(1): Provides that the number of Supreme Court judges shall be determined by Parliament through law.
7. Article 123: Empowers the President to promulgate Ordinances when Parliament is not in session.
8. Basic Structure Doctrine: Judicial independence is recognised as a part of the Constitution’s Basic Structure.  Any action that potentially compromises institutional autonomy attracts constitutional scrutiny.

Concerns About Judicial Independence?

1. Concerns Regarding Security of Tenure

• The continuation of Ordinance-created posts depends upon parliamentary approval.
• If the Ordinance lapses, questions arise regarding the legal status of those positions.

2. Concerns Regarding Institutional Perception

• The executive that created the posts may appear before the same judges in future cases.
• This could create a perception that judges occupy positions dependent upon executive goodwill.

3. Concerns Regarding Separation of Powers

• The judiciary may appear dependent on temporary executive action rather than permanent legislative sanction.

Why Does the Issue Appear Contradictory to Earlier Judicial Positions?

1. NJAC Judgment (2015): In Supreme Court Advocates-on-Record Association v. Union of India (2015):

• The Supreme Court struck down the National Judicial Appointments Commission (NJAC).
• The Court held that judicial primacy in appointments is essential for independence.
• Even limited executive influence was considered problematic.

2. D.C. Wadhwa Case (1986)

• The Court criticised repeated use of Ordinances.
• It termed re-promulgation of Ordinances a “fraud on the Constitution.”

3. Krishna Kumar Singh Case (2017)

• The Court held that Ordinance-making power cannot become an alternative legislative route.

Arguments in Favour of the Ordinance

1. Addressing Judicial Pendency: Increasing the Supreme Court’s strength helps reduce mounting case backlogs and improves the efficiency of justice delivery.

2. Constitutional Legitimacy: Article 123 authorises the President to promulgate Ordinances, which enjoy the same force and effect as an Act of Parliament during their operation.

3. Preventing Administrative Delays: Immediate appointments ensure that critical judicial vacancies do not remain unfilled while awaiting the legislative process.

4. Supporting Judicial Capacity Expansion: The additional posts respond to the growing workload of the Supreme Court and the increasing complexity of constitutional and public interest litigation.

5. Pragmatic Institutional Calculation: The Collegium appears to have assumed that Parliament would soon regularise the Ordinance through legislation and that upcoming retirements would absorb judges appointed against Ordinance-created posts, thereby avoiding long-term legal uncertainty.

Way Forward

1. Enact a Permanent Legislative Framework: Parliament should promptly replace the Ordinance with a regular law to provide a stable legal basis for the increased judicial strength. This would eliminate uncertainty regarding the status of judges appointed against Ordinance-created posts.

2. Safeguard Judicial Independence in Appointments: Judicial appointments should be insulated from temporary executive measures to avoid any perception of institutional dependence. This would strengthen public confidence in the autonomy of the judiciary.

3. Enhance Transparency and Institutional Accountability: Greater transparency in decisions relating to judicial appointments and court administration can improve institutional credibility. Clear and predictable procedures also help reinforce trust in the judicial system.

4. Develop a Long-Term Judicial Manpower Policy: India needs a comprehensive assessment of judicial workload, vacancies and future requirements across all levels of the judiciary. Such planning can ensure timely expansion of judicial capacity without ad hoc measures.

5. Balance Judicial Efficiency with Constitutional Principles: Efforts to reduce pendency and strengthen judicial capacity must remain consistent with judicial independence, separation of powers and security of tenure. Administrative efficiency should complement, not compromise, constitutional safeguards.

Conclusion

The controversy is not about the competence of the appointed judges but about the constitutional principles underlying their appointments. Judicial independence requires not only freedom from executive influence but also the appearance of such freedom. Going forward, strengthening judicial capacity must be pursued through constitutionally stable mechanisms that preserve both institutional autonomy and public confidence in the judiciary.