Context
Recently, the President Droupadi Murmu promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026 under Article 123 of the Indian Constitution.
1. Key Highlights of the Development:
- Strength Increased: The ordinance increases the maximum sanctioned strength of Supreme Court judges (excluding the Chief Justice of India) from 33 to 37.
- Total Capacity: Including the Chief Justice of India (CJI), the total sanctioned strength will rise from 34 to 38.
- Statutory Amendment: The ordinance amends Section 2 of the Supreme Court (Number of Judges) Act, 1956.
- Judicial Pendency: To tackle a major crisis of judicial pendency, as the Supreme Court’s backlog has crossed 93,000 cases, threatening to touch six figures.
- 1950 (Original Constitution): Article 124(1) originally envisaged 1 CJI + “not more than 7 judges” (7+1=8).
2. Ordinance-Making Power of the President (Article 123)
The ordinance-making power is the most important legislative power of the President, designed specifically to deal with unforeseen or urgent situations.
I. Four Core Constitutional Limitations:
- Recess of Parliament: The President can only promulgate an ordinance when both Houses of Parliament are not in session, or when either of the two Houses is not in session. An ordinance issued while both Houses are in session is completely void.
- Immediate Action: The President must be satisfied that circumstances exist which render it necessary to take immediate action.
- Co-extensive with Parliament: The ordinance-making power is co-extensive with the legislative power of Parliament. This means:
- An ordinance can only be issued on subjects where Parliament can make laws (Union and Concurrent lists).
- It is subject to the same constitutional limitations as an Act of Parliament (e.g., cannot violate Fundamental Rights).
- Important Note: An ordinance cannot be used to amend the Constitution.
- Retrospective & Amending Nature: An ordinance can be retrospective (act from a past date) and can alter or amend any act of Parliament or even another ordinance.
II. Parliamentary Approval & Lifespan of an Ordinance
Every ordinance promulgated must be laid before both Houses of Parliament when they reconvene.
- Mandatory Tabling: Once the Parliament is back in session, the ordinance must be officially presented (laid) before both Houses.
- Six-Week Deadline: The legislature must pass a resolution approving the ordinance within six weeks of reassembling.
- Bicameral Nuance: If Lok Sabha and Rajya Sabha are called to reassemble on different dates, the six-week timeline is calculated from the later of the two dates.
- Disapproval & Withdrawal: An ordinance ceases to operate immediately if both Houses pass resolutions rejecting it. The President can also withdraw an ordinance at any time, on the advice of the Council of Ministers.
III. Calculating the Maximum Life of an Ordinance:
- Maximum Gap Between Sessions: Under Article 85, the maximum gap between two sessions of Parliament cannot exceed 6 months.
- Post-Reassembly Window: The ordinance gets an additional 6 weeks once Parliament reconvenes.
- Maximum Validity:
6 months + 6 weeks = Approx. 7.5 months
3. Landmark Judicial Pronouncement
A. RC Cooper Case (1970): The Supreme Court ruled that the President’s “satisfaction” regarding the necessity of immediate action is not justifiable to be completely above judicial review. It can be challenged in court if it is proved that the power was exercised with malafide intent or to bypass Parliamentary debate.
B. DC Wadhwa Case (1987): The Court observed that the Executive cannot usurp the law-making functions of the Legislature. It held that the “re-promulgation of ordinances” repeatedly without attempting to place them before the legislature constitutes a fraud on the Constitution and is subversion of the democratic legislative process.
C. Krishna Kumar Singh Case (2017): The Supreme Court solidified that:
- The authority to issue ordinances is not an absolute alternative to the law-making powers of the Parliament.
- The requirement to place the ordinance before the Legislature is mandatory. Failure to place it before Parliament is a constitutional abuse.
5. Core Differences: President vs. Governor
| Comparative Feature | President of India | Governor of a State |
| Constitutional Article | Article 123 | Article 213 |
| Legislative Recess Requirement | Can issue an ordinance when either House (Lok Sabha or Rajya Sabha) or both Houses of Parliament are not in session. | Can issue an ordinance when the Legislative Assembly is not in session (unicameral), or when both Houses (Assembly and Council) are not in session (bicameral). |
| Legislative Competence | Co-extensive with the law-making power of Parliament. Can only issue ordinances on subjects in the Union List and Concurrent List. | Co-extensive with the law-making power of the State Legislature. Can issue ordinances on subjects in the State List and Concurrent List. |
| Presidential Instructions | Can act independently based on the aid and advice of the Union Cabinet. No prior permission is ever required. | Cannot issue certain ordinances without prior instructions from the President under three specific conditions. · Prior Presidential sanction required. · Governor may reserve the Bill for the President. · Valid only after Presidential assent. |
| Constitutional Amendments | Cannot amend the Constitution. | Cannot amend the Constitution. |
| Lapse / Approval Body | Must be laid before and approved by both Houses of Parliament. | Must be laid before and approved by the State Legislative Assembly (and Council, if bicameral). |
| Repugnancy Rule | An ordinance overriding a state law on a Concurrent subject will prevail. | An ordinance on a Concurrent subject that conflicts with a Central Parliamentary Law is void, unless it was issued on the prior instructions of the President. |
6. Quick Prelims Pointers
- Who decides the strength of the SC? Parliament possesses the exclusive authority to increase the number of judges in the Supreme Court by law (Article 124(1)). This is why an executive ordinance must amend a Parliamentary Act (Supreme Court Act, 1956).
- State Counterpart: The Governor of a state possesses a parallel ordinance-making power under Article 213, which shares identical operational mechanics but is restricted to state legislative competencies.
With reference to the Ordinance-making power of the President under Article 123 of the Indian Constitution, consider the following statements:
1. The President can promulgate an ordinance even when both Houses of Parliament are in session.
2. An ordinance has the same force and effect as an Act of Parliament.
3. An ordinance can amend the Constitution of India.
4. The maximum possible life of an ordinance can extend to about seven and a half months.
Which of the statements given above are correct?
(a) 2 and 4 only
(b) 1, 2 and 3 only
(c) 2, 3 and 4 only
(d) 1 and 4 only
Answer:
(a) 2 and 4 only
Explanation:
• Statement 1 is Incorrect: Ordinance can only be issued when Parliament is not in session.
• Statement 2 is Correct: It has the same force as an Act of Parliament.
• Statement 3 is Incorrect: Ordinance cannot amend the Constitution.
• Statement 4 is Correct: Maximum validity can be approximately 6 months + 6 weeks.
