In March 1937, Franklin D. Roosevelt went on American radio to explain why he wanted to enlarge the United States Supreme Court. He described constitutional government as a “three horse team”: Congress, the Executive and the courts, with the American people in the driver’s seat. Roosevelt’s complaint was that the judicial horse had stopped pulling with the other two.
The image was folksy. The proposed remedy was anything but. Roosevelt wanted authority to appoint an additional Justice whenever a sitting Justice above the age of 70 years and six months declined to retire, subject to a maximum of six new appointments. A nine-member court could have become a 15-member court. The proposal failed in Congress and entered political folklore as the “court-packing plan”. Yet its failure established an enduring proposition: the number of judges in an apex court may be stated as an integer, but it operates as an arrangement of constitutional power.
India has now enlarged its Supreme Court in circumstances that bear almost no resemblance to Roosevelt’s confrontation. The Supreme Court (Number of Judges) Amendment Bill, 2026, raises the number of judges other than the Chief Justice of India from 33 to 37. The total sanctioned strength will rise from 34 to 38. The Lok Sabha passed it on August 3 without a debate. The Rajya Sabha discussed and approved it on August 5, completing parliamentary passage. At the time of writing, presidential assent was awaited.
Law Minister Arjun Ram Meghwal disclosed in the Rajya Sabha that the proposal to increase the strength of the Supreme Court began with a letter from Chief Justice of India Surya Kant to Prime Minister Narendra Modi. Meghwal put the pendency at 96,024 cases as of July 16. The Bill’s Statement of Objects and Reasons (SoR) records 92,101 on January 1. The docket grew by nearly 4,000 cases while the measure was being enacted.
No plausible evidence suggests an Indian version of court-packing. The additional positions do not create an instant ideological majority. Indian judges retire at 65. They generally hear cases in benches of two or three rather than sitting together as one court. The declared purpose is to confront a growing docket, not to reverse an inconvenient line of constitutional decisions.
The absence of sinister intent, however, does not make institutional design unnecessary.
The constitutional question is therefore a narrower and more useful one: when Parliament changes the numerical architecture of the institution that reviews its laws, is it enough to present a backlog and announce four additional judges, or must it explain how that number was derived and how the enlarged court will be organised?
From bench design to backlog arithmetic
Article 124(1) originally contemplated a Supreme Court consisting of the Chief Justice and no more than seven other judges, while permitting Parliament to prescribe a larger number by ordinary law. Parliament has exercised that power seven times.
The first increases were accompanied by an identifiable theory of how the court should sit. In 1956, the justification was that constitutional appeals required a bench of five judges to function almost continuously. The remaining judges had to form ordinary benches, which at the time were expected to consist of at least three judges. Raising the number of puisne judges from seven to 10 allowed the court to maintain a Constitution Bench and two ordinary benches.
The 1960 amendment added three more judges so that another three-judge bench could function. The Chief Justice had reported that the previous increase accelerated disposals, but institutions were still outpacing them. These were not perfect calculations, but they were calculations. The proposed number of judges corresponded to a proposed configuration of benches.
A general view of the Supreme Court in New Delhi on October 10, 2025.
| Photo Credit:
Shashi Shekhar Kashyap
Later SoRs, whenever Parliament sought to increase the strength of the Supreme Court, increasingly adopted a different method. They recorded the rising institution of petitions, mounting arrears, and an institutional request for more judges. In 1977, the ceiling rose from 13 to 17 puisne judges. In 1986, amid a dramatic expansion of filings, it jumped from 17 to 25, the largest single increase in the court’s history. It rose to 30 through the 2008 Bill, enacted in 2009, and to 33 in 2019.
The Bill’s SoR records that during 2025, 75,410 fresh matters were instituted and 65,615 were disposed of, leaving a deficit of 9,795 for that year. It identifies older cases and matters requiring larger benches as particular concerns. More judges, it says, are among the most “exigent and viable” solutions and will enable the Chief Justice to constitute Constitution Benches regularly.
The figures establish pressure. They do not justify the addition of exactly four more judges.
There is no published formula showing how four additional judges were derived from 92,101 pending cases. There is no estimate of the additional disposals expected from them, no proposed number of Constitution Bench sitting days, and no account of the courtrooms, chambers, Registry personnel and law clerks required. The Financial Memorandum calculates the initial recurring and non-recurring expenditure at approximately Rs.14.04 crore. The state can calculate the cost of four official cars and four furnished residences more precisely than it can describe the judicial capacity they are expected to produce.
The Constitution Bench promise
One phrase travels almost unchanged through legislative history. In 2008, the SoR of the Bill increasing the strength of the Supreme Court said that the Chief Justice could not regularly constitute a five-judge bench without reducing the number of Division Benches and delaying ordinary civil and criminal cases. The 2019 SoR repeated the point. The 2026 SoR invokes larger benches once more.
The recurrence invites a question that Parliament did not ask. If earlier increases were justified partly as a means of releasing judges for Constitution Benches, why has the same constraint survived each expansion?
The answer may lie in the unusual character of the Indian Supreme Court. It is at once a constitutional court, a national appellate court, an error-correction court and, through Article 136, a court receiving petitions from an enormous range of tribunals and High Courts. Additional judges can create additional benches. Additional benches can dispose of more cases. But they can also admit more cases and produce more judgments requiring reconciliation.
A larger court is therefore not merely the same institution operating at greater speed. It can become a more fragmented institution. Thirty-eight judges sitting in numerous combinations may generate divergent interpretations that must later be resolved by larger benches. The medicine for pendency can contribute to the demand for the very Constitution Benches whose absence justified the medicine.
More judges also enlarge the administrative importance of the Chief Justice’s roster. The Chief Justice must decide which judges sit together, which matters receive larger benches, and how scarce judicial time is distributed between constitutional cases and the daily appellate docket. No impropriety need be alleged. The point is structural: increasing the number of judges increases the number of consequential choices involved in organising them.
Four additional appointments also present an opportunity to address the court’s limited professional, regional, gender, and social diversity. The SoR appears to assume that four additional judges will translate directly into four equal additions to the court’s disposal capacity. But judges are not interchangeable units of output. Their institutional value depends on the benches they constitute, the complexity of the cases they hear, and the constitutional work they are expected to perform.
The addition of four judges does not immediately alter the ideological balance of every case because the court does not ordinarily sit en banc. The American court decides a small, selectively chosen docket as a single nine-member institution. The Indian court receives thousands of petitions and distributes them across multiple benches. The United States has retained nine seats since 1869; India has enlarged its court repeatedly as litigation has expanded.
The comparison nevertheless yields a common first principle. The size of an apex court affects how judicial authority is distributed. In America, the immediate concern is ideological control of an en banc court. In India, it is the multiplication of benches, the consistency of doctrine, the distribution of roster power, and the balance between constitutional adjudication and routine appeals.
The difference defeats the accusation of court-packing. It does not defeat the case for deliberation.
The counterargument for four more judges
There is a serious and uncomplicated defence of the Bill. The backlog is real. Judges cannot decide cases by metaphysics. More benches require more judges. History also cautions against dismissing expansion as futile. The Parliamentary Standing Committee examining the 2008 Bill noted that, after the eight-judge increase of 1986, recorded pendency fell substantially during the following decade even though admission filings increased. Causation is difficult to isolate, and methods of counting cases have changed, but the experience suggests that additional judicial capacity can make a material difference.
There is a real backlog of cases that does require more benches and more judges. This photo is representational.
| Photo Credit:
Garsya/Getty Images
The same committee, however, did something Parliament did not do this time. It invited public submissions, consulted professional bodies, examined the relationship between institutions, disposals and judge strength, and asked whether increasing judges alone could resolve pendency. The government acknowledged before it that no settled criterion existed for calculating the Supreme Court’s required strength. Pendency had been used to justify five more judges. That candid admission in 2008 remains an unanswered design problem in 2026.
Parliament could have asked for a limited committee examination without delaying appointments indefinitely. It could have sought the court’s workload study, the proposed deployment of the four judges, an assessment of Registry and courtroom capacity, and benchmarks for evaluating whether the amendment succeeds. It could also have examined whether reform of admission practices under Article 136 might reduce the inflow that repeatedly overtakes additional capacity.
It could, finally, have revisited the Law Commission’s 229th Report. That report argued in 2009 that more judges alone would not cure pendency, and proposed regional benches instead. A full court of the Supreme Court rejected the idea in 2010. Nobody in either House asked whether the objection it raised has since been answered.
Instead, the institutional sequence was inverted. The executive first enlarged the court through an Ordinance on May 16. The Bill was introduced on July 20 to replace it. The Lok Sabha then approved it without debate. The Ordinance power exists for circumstances requiring immediate action when Parliament is not in session, but the SoR does not explain why the creation of four permanent judicial positions could not await parliamentary consideration.
That omission may never reach court. The judiciary gains institutional capacity. The Union supports the measure. Opposition parties have little reason to oppose the abstract proposition that more judges may mean faster justice. No readily identifiable citizen suffers an immediate injury.
This produces the Bill’s most revealing paradox. The Supreme Court has recognised parliamentary committees as important institutions of scrutiny and deliberative democracy. It has also distinguished procedural irregularities, which Article 122 protects from judicial inquiry, from substantive constitutional illegalities that may remain reviewable. Mere absence of debate does not ordinarily invalidate an otherwise competent law. But a measure affecting the court’s own architecture is especially unlikely to generate the adversarial litigation through which the court’s principles about legislative process are normally articulated.
The court’s own record makes the paradox concrete. In August 2021, a bench led by Chief Justice N.V. Ramana asked the Solicitor General to show “any discussion in Parliament” on the Tribunals Reforms Bill. Days later, he called the decline of parliamentary debate a “sorry state of affairs”. Justice D.Y. Chandrachud, dissenting in the Aadhaar case, called the Money Bill route that bypassed the Rajya Sabha a “fraud on the Constitution”. In February 2024, a bench led by Justice Sanjiv Khanna asked whether there had been “proper debate” before Parliament rewrote the law on Election Commission appointments. On May 6, another bench of the Supreme Court, comprising Justices Dipankar Datta and S.C. Sharma, asked the same question while hearing a challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.
The floor is not the only site of vanished scrutiny. Referral of Bills to standing committees has fallen from 71 per cent in the 15th Lok Sabha to roughly 16 per cent in the 17th. This Bill was referred to none.
The inconsistency is institutional rather than personal. Courts speak about deliberation when a dispute brings legislative haste before them. No dispute, no doctrine. A law may consequently escape scrutiny because all powerful institutions are broadly satisfied with it.
Roosevelt’s metaphor placed the people in the driver’s seat of a three-horse constitutional team. India’s present difficulty is quieter. No horse is openly refusing to pull. Parliament has simply added four more to the judicial team without publicly explaining the harness, the load each will carry, or the furrow by which success will be judged.
The issue is not that the court has been made larger. The increase may be necessary and overdue. The issue is that necessity was asserted where institutional design should have been demonstrated.
When power is rearranged without opposition, deliberation becomes more important, not less. A constitutional court is not enlarged merely by adding chairs. Parliament is altering the machinery by which the Constitution acquires a judicial voice. The people in the driver’s seat were entitled to be told why that voice required exactly four more speakers.
V. Venkatesan is a Contributing Editor at Supreme Court Observer. The views are his own.
Also Read | What the Supreme Court missed about hate speech
Also Read | The petitioner as suspect
