Supreme Court Bench Strength Raised to 38: Ordinance 2026 and Collegium Appointments Explained

President Droupadi Murmu on May 16, 2026, promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026, raising the sanctioned strength of Supreme Court judges from 34 (including the Chief Justice of India) to 38. The ordinance, issued under Article 123 of the Constitution while Parliament is not in session, amends the Supreme Court (Number of Judges) Act, 1956, increasing the number of judges other than the CJI from 33 to 37. This is the largest single increase in the Court bench strength in recent decades and comes in response to a mounting case backlog.

Why the Expansion Was Needed

Chief Justice Surya Kant had written to the government citing two pressing concerns. First, the Supreme Court carried a pendency of 93,143 cases as of March 31, 2026, a number that has been growing steadily. Second, the Court has struggled to constitute five-judge Constitution Benches and larger benches to hear important constitutional questions. With a working strength of just 32 judges (two vacancies existed even before the ordinance), the Court could not spare judges from regular two-judge and three-judge benches handling daily matters to sit on Constitution Benches without disrupting the regular calendar.

The inability to constitute Constitution Benches has resulted in several significant constitutional questions remaining pending for years. Questions relating to Article 370, electoral bonds, religious freedom, environmental regulation, and other fundamental issues require larger benches. Increasing the sanctioned strength allows the Chief Justice greater flexibility in bench allocation.

How the Collegium Appointment Process Works

Appointments to the new posts will continue through the collegium system established by the Supreme Court in the Second Judges Case (1993) and the Third Judges Case (1998). The collegium, headed by the Chief Justice and comprising the four senior-most judges of the Court, recommends names to the President for appointment. The government can return a recommendation for reconsideration, but if the collegium reiterates the name, the appointment is conventionally made.

The collegium was expected to begin consultations from May 18, 2026, to identify potential candidates. With the working strength at 32 and four further retirements scheduled later in 2026, the collegium is expected to recommend at least 10 judges over the course of the year to bring the Court closer to its new sanctioned strength of 38. Candidates are typically drawn from High Court Chief Justices, senior High Court judges, and distinguished members of the Bar.

Historical Context of Bench Strength Changes

The Supreme Court began with an original strength of 8 judges (including the Chief Justice) when it was established on January 26, 1950. The strength has been increased periodically through amendments to the Supreme Court (Number of Judges) Act, 1956: to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009, and 34 in 2019. The 2026 ordinance adds four posts at once, the largest single increase since 1986 when the strength was raised from 18 to 26.

Constitutional and Legal Basis

Article 124(1) of the Constitution provides that the Supreme Court shall consist of a Chief Justice and such number of other judges as Parliament may by law prescribe. The Supreme Court (Number of Judges) Act, 1956, is the statute through which Parliament fixes this number. Article 123 empowers the President to promulgate ordinances when both Houses of Parliament are not in session, provided the President is satisfied that circumstances exist requiring immediate action. The ordinance has the same force as an Act of Parliament but must be laid before both Houses when Parliament next meets and will cease to operate six weeks from the reassembly of Parliament unless ratified.

Key Takeaways

The Supreme Court sanctioned strength has been raised from 34 to 38, including the CJI, through an ordinance promulgated on May 16, 2026. The expansion addresses a case pendency of over 93,000 and the need for more Constitution Benches to decide long-pending constitutional questions. The collegium will recommend candidates through the established appointment process. At least 10 new judges are expected to be recommended during 2026 to account for both the new posts and upcoming retirements. Parliament must ratify the ordinance within six weeks of its next session for the increase to become permanent.