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An ordinance must, by the Constitution’s text, name a circumstance. The Supreme Court (Number of Judges) Amendment Ordinance, 2026, promulgated on May 17, names none. Its preambular recital reproduces Article 123 verbatim. ‘WHEREAS Parliament is not in session and the President is satisfied that the circumstances exist which render it necessary for her to take immediate action’: that is the recital, and it supplies no fact for the constitutional formula to attach to. The substantive change the ordinance effects is one word: ‘thirty-three’ in section 2 of the Supreme Court (Number of Judges) Act, 1956 becomes ‘thirty-seven’. The procedural change is greater than the substantive one. So is what it conceals.

Pendency at the Supreme Court is, and has been, in the public domain. The sanctioned strength of 33 is set by statute. The proposal to raise it reached the government in March 2026, from the office of Chief Justice Surya Kant. Parliament was then sitting through the second leg of the Budget Session, which continued until April 2. The government did not introduce a Bill. The Cabinet took five weeks more to clear the proposal, on May 5. The president signed the ordinance 11 days after that. The Monsoon Session begins on July 21.

On these facts the ordinance’s recital is doubly empty. The first limb, that parliament is not in session, is true only in the trivial calendar sense. It elides the question of why the legislature was not consulted while it was sitting. The second limb, that immediate action is necessary, is unsupported by any specific reason. The Cabinet note that preceded the ordinance was a policy decision with reasons; the recital that followed is  an incantation without them. The intervening event that converts a routine policy choice into a constitutional emergency is nowhere named. None is named because none occurred.

The case the Union government has not made

The official justification rests on a single proposition: pendency. The Supreme Court’s docket has crossed 93,000 cases as of March 31, 2026. Chief Justice Surya Kant has welcomed the move and pointed to 25 Constitution Bench cases awaiting hearing. Four extra judges, the Union government says, will help. The historical record refuses the inference.

In 2008, the strength was raised from 26 to 31;........

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