Supreme Court Bench Size Expansion: How The Ordinance Treats The Symptom Rather Than The Underlying Disease

Abstract

The Supreme Court of India is currently facing a long-standing challenge of a growing backlog of cases, with the number recently crossing an all-time high of 93,731 pending cases. To tackle this, the executive has continuously followed a mathematics-driven approach of increasing the bench size in order to improve judicial efficiency. The Supreme Court (Number of Judges) Amendment Ordinance, 2026, which raised the total judge strength to thirty-eight, is the latest in this series. However, it is worth noting that every instance of numeric expansion of judges has been accompanied by growth in pendency of cases. This clearly indicates that expanding the bench does not help in clearing the backlog; rather, it creates room for more appellate litigation. This paper evaluates the effectiveness of this quantitative strategy, arguing that increasing the number of judges is a narrow approach that can only temporarily treat the symptom rather than the underlying disease. The central problem lies in the unprecedented use of Article 136 of the Indian Constitution, which governs Special Leave Petitions (SLPs). While the Court in Pritam Singh v. State (1950 INSC 9) held that SLPs were intended to be used only in extraordinary cases, their repetitive application has turned Article 136 into an ordinary, routine appellate mechanism. By thoroughly analysing the 18th Law Commission’s 229th Report, this paper supports the recommendations suggested by the Commission. It considers the bifurcation of the Supreme Court into a permanent Constitutional Bench in Delhi and four regional Cassation Benches for regular appeals involving civil and criminal matters. It also acknowledges the institutional reluctance to bifurcation, including the possible apprehension of dilution of the Court’s majesty. This paper briefly explores the structural models adopted by the United States, Germany, and the United Kingdom, and suggests that India should adopt the best of these international practices. It concludes that long-term solutions require structural reorganisation rather than simple numerical expansion.

Keywords: Supreme Court of India, Article 136, Special Leave Petitions, 229th Law Commission Report, Supreme Court (Number of Judges) Amendment Ordinance 2026, Regional Cassation Benches.

1. Introduction

1.1 Background
The original intent of the framers of the Indian Constitution was to build a sovereign, secular, democratic republic that would address the historical injustices faced by its citizens. To achieve this, they created a system comprising the Executive, the Legislature, and the Judiciary, with the Judiciary being the central concern of this paper. To maintain judicial order and address the grievances of the people, a three-tier judicial structure was created, namely the District Courts, the High Courts, and the apex body, the Supreme Court. Under Article 124, the Supreme Court was formed to settle seminal questions of public interest and constitutional interpretation.

The structure of the Supreme Court of India is not static; it has changed from time to time, with the most recent change being the Supreme Court (Number of Judges) Amendment Ordinance, 2026, promulgated by President Draupadi Murmu. The Ordinance was notified on 16 May 2026. It amended Section 2 of the Supreme Court (Number of Judges) Act, 1956, raising the number of puisne judges from 33 to 37, thereby increasing the total sanctioned strength of the Apex Court from 34 to 38, including the Chief Justice of India.[1] The measure was taken as the Government of India believed it would reduce the mounting pressure on the Court and help it function more efficiently.[2] This step was taken at a time when the number of pending cases before the Court had reached approximately 93,000. That said, a look at the historical data on the expansion of the Court’s strength reveals a strikingly paradoxical pattern: the backlog has grown exponentially alongside its size. When the Supreme Court of India was established in 1950, the sanctioned strength was eight judges and the number of pending cases was just 690. In 1956, the Court’s strength was raised to eleven judges, while pending cases grew to 1,722. By 1986, the backlog had risen to 85,899 cases, prompting the expansion of sanctioned strength from 18 to 26. Then again in 2019, due to the mounting pressure of 59,859 pending cases, the strength was raised to 34.[3] An analysis of this data shows that expanding the bench did not actually help in reducing the backlog, it merely created more room to attract appellate litigation.

1.2 Problem Statement
The recent expansion is a prime example of the executive’s mathematical approach to dealing with pending backlogs. The government is effectively attempting to solve an institutional and structural problem, one that requires qualitative changes, through purely quantitative measures. In 1950, because of its smaller size, all the Supreme Court judges functioned as a cohesive team, hearing and disposing of cases together (en banc). In contrast, the Court today works through multiple simultaneous two- or three-judge benches,[4] thereby transforming from a singular constitutional body into a fragmented adjudicatory structure. The increase in the number of judges has created a cycle of demand and supply, as the expansion of benches creates greater capacity for hearing Special Leave Petitions at the admission stage. This encourages litigants to challenge High Court decisions, thereby catalysing an increase in the number of pending cases before the Court rather than reducing them.

1.3 Thesis Statement
The executive’s continuing approach of addressing pending judicial cases through mere mathematical expansion is outdated and inadequate. While increasing the strength may temporarily appear to solve the problem, it fails to resolve the deep-rooted institutional crisis affecting the Apex Court of India. The central issue is not merely the lack of adequate judges, but the absence of a clear structural differentiation between cases of constitutional importance and routine appellate adjudications. Over time, the character of the Court has shifted, from functioning as the guardian of the Constitution, dealing with grave constitutional questions and matters of public importance, to operating like an ordinary court of appeal. The executive should stop viewing the issue through a narrow lens and instead restructure the Court’s jurisdiction by defining its original role more clearly. This is essential to prevent the Supreme Court of India from transforming from a harmonised institution into a divided forum handling routine appellate cases.

2. Structural Shortcomings of Numerical Expansion

2.1 Looking Beyond Bigger Benches
The Government of India has adopted an approach which assumes that more judges, upgraded technology, and improved infrastructure will lead to improved efficiency and faster disposal of cases. However, such a framework overlooks the unique and distinctive role of the highest court of the country. The Supreme Court is a Constitutional Court, it is not solely concerned with managing efficiency and resolving litigation. This contention was raised by the 18th Law Commission of India in its 229th Report (2009) on the growing workload of the Supreme Court. The Commission observed that the Court was gradually detaching from its original identity by functioning both as a routine appellate forum and as India’s highest constitutional body. To resolve this, the Commission suggested a structured division of the Court. It argued for a permanent Constitution Bench based in New Delhi to deal specifically with matters of constitutional importance, alongside the creation of four regional Cassation Benches in Delhi, Chennai, Kolkata, and Mumbai to handle civil and criminal appeals.[5] The primary objective of the Commission was to protect the constitutional sanctity of the Apex Court. It is, however, to be noted that these recommendations were not implemented, which means the Court continues to handle both constitutional and routine appellate litigation, the fundamental reason for the growing pendency of cases before India’s highest authority.

2.2 The ‘SLP’ in the Room: Constitutional Court Turning into Court of Corrections
The power to grant Special Leave Petitions (SLPs) is conferred by Article 136 of the Constitution of India. It allows the Supreme Court to intervene in cases involving substantial legal questions and injustices. However, with the passage of time, SLPs have become a mechanism of routine appellate litigation, flooding the Supreme Court with a large number of cases yet to be heard. Around 92% of the 60,000 cases filed annually in the Court are SLPs,[6] thus transforming an extraordinary power into a regular avenue. The central problem arises here: as judicial strength increases, the number of Division Benches and admission hearings also increases. This leads to a vicious cycle in which a greater number of judges leads to greater appellate litigation. As a result, judicial pendency does not reduce, and in some cases even worsens, despite numerical expansion. Another drawback of the expanding appellate jurisdiction is the fragmentation of judges who once practised in a cohesive manner. Judges frequently sit in two- or three-judge combinations, which naturally leads to differing views on similar questions and creates ambiguity for litigants and all others concerned with the ruling. Although the Court was never designed to hear only constitutional matters, the balance has over time shifted considerably towards appellate work, primarily because of SLPs. Article 136 was intended to function as an extraordinary discretionary power, as the Court held in Pritam Singh v. State,[7] but its current application suggests otherwise.

3. Understanding the Institutional Resistance

3.1 The Question of Centralisation
Article 130 of the Indian Constitution provides that the Supreme Court shall sit in Delhi or in any such place as the Chief Justice of India may, with the approval of the President, appoint.[8] This means that the power to shift benches lies primarily with the judiciary. The Apex Court treats this power as a part of its institutional independence. According to this view, creating regional Cassation Benches may dilute the symbolic supremacy of the Court. There is also a view that creating regional divisions may negatively impact the unity of the Court.[9]

3.2 V. Vasanthakumar v. H.C. Bhatia (2016)
In V. Vasanthakumar v. H.C. Bhatia and Ors. (2016),[10] a lawyer from Puducherry filed a Public Interest Litigation demanding a National Court of Appeal (NCA) with regional benches. The demand was primarily based on the argument that access to the Supreme Court is unequal and financially prohibitive for people living far from Delhi. Litigants from Tamil Nadu or Assam spend considerable sums on travel, legal representation, and accommodation even for short admission hearings under Article 136. This creates an uneven playing field for those seeking justice based solely on geography. A bench led by Justice T.S. Thakur referred the matter to a Constitutional Bench because of its constitutional significance. However, no major structural reform followed, owing to institutional resistance.

3.3 The Fragmentation Caveat
The Supreme Court currently sits in benches of two or three judges rather than as a single unified bench. Different benches sometimes interpret the law differently. The concern is that creating regional appellate benches may further increase such inconsistencies, creating a situation where legal outcomes depend on geography rather than uniform national standards.

However, this concern must be viewed in context. Judicial inconsistencies already arise under the current framework, as different benches sometimes deliver contradictory opinions. Centralisation in Delhi has, therefore, not prevented contradictory judgements. The issue is not one of geography but of the absence of sound institutional design. In fact, the creation of regional benches would allow the Supreme Court to dedicate more time to cases of constitutional significance, thereby improving both consistency and quality of adjudication.

4. International Comparisons and Analysis

Examining structural models from other jurisdictions can offer valuable insights for India. Drawing on the best practices from multiple examples may help address the structural problems that our apex judicial institution faces.

4.1 The United States Model
The United States Supreme Court exercises broad discretion over the cases it agrees to hear. It follows an informal “Rule of Four”, under which at least four of the nine justices must agree before the Court will hear a case. Every year, nearly 7,000–8,000 cases are filed before the Court. However, the Court agrees to hear only around 70 to 80 cases annually.[11] This allows the Court to focus on matters of constitutional interpretation, federalism, and other issues of national importance, preventing it from becoming a forum primarily concerned with error correction. India should consider adopting a similar informal filter, and the US experience provides a compelling precedent.

4.2 The German Model
Germany follows a system of structural judicial bifurcation, under which matters of constitutional interpretation are intrinsically separated from ordinary appellate litigation. The Federal Constitutional Court — the Bundesverfassungsgericht (BVerfG) — is the guardian of the Basic Law. It is divided into two Senates, each consisting of eight judges. Unlike the Indian Supreme Court, it does not deal with regular appellate cases and confines itself exclusively to matters of constitutional importance.[12] Of the 254,375 cases brought before the Court, 245,310 involved constitutional complaints.[13] Despite receiving approximately 5,000 cases every year, only a small proportion of constitutional complaints are admitted for decision; most are dismissed at the screening stage. Regular civil, criminal, labour, tax, social security, and administrative appeals are handled separately by five specialised Federal Supreme Courts. This institutional bifurcation ensures that the apex court is not burdened with routine appellate cases.

4.3 The United Kingdom Model
In the United Kingdom, the Appellate Committee of the House of Lords was replaced by the Supreme Court of the United Kingdom in 2009. The UK follows a “Permission to Appeal” (PTA) mechanism, under which either the lower appellate court grants permission or the Supreme Court itself permits the appeal.[14] Permission is granted only when the case raises an arguable point of law of general public importance. This structural filter ensures that ordinary and routine cases do not consume the time of the Supreme Court. India should consider introducing a similar permission stage, so that only cases raising significant legal questions reach the highest court. If appellate courts effectively filter out routine adjudications, the Supreme Court of India would have far greater capacity to focus on matters of constitutional importance.

5. Conclusion

From 1950 to 2026, the evidence is clear: merely increasing the number of judges has not solved the problem of case pendency. With every expansion, the Court’s capacity to accumulate more cases increased, and simultaneously inspired more litigants to approach the Court. This means that the reason behind the backlog is not only numerical but also structural. Treating 93,000+ pending cases by simply expanding the bench ignores decades of evidence that quantitative expansion alone cannot resolve the problem. Article 136 of the Indian Constitution was originally designed to be invoked only in extraordinary circumstances; that design has not been followed. The Supreme Court gradually began hearing routine appeals involving ordinary criminal or property matters, which diverted the Court from its primary objective.

The expansion of judges from eight in 1950 to thirty-eight in 2026 has led to the creation of numerous simultaneous Division Benches. These benches sometimes deliver contradictory judgements, which creates judicial inconsistency. Conflicting judgements further attract litigation, as concerned parties continue to approach the Court for clarification. A recent illustration is In Re: Social Science Textbook for Grade-8 (Part-2) Published by NCERT and Ancillary Issues, in which the Supreme Court first issued an order on 11 March 2026 directing governments and universities to disassociate from three academics involved in drafting an NCERT chapter on corruption in the judiciary and effectively blacklisting them. However, on 22 May 2026, the Court recalled its initial direction, clarifying that the Union and the States may take their own independent decisions on associating with these academics.[15]

Opposition to regional benches is frequently justified in the name of preserving the unity of the Court under Article 130; however, such arguments fail to account for the significant impediments that the current centralised structure creates for litigants outside Delhi. Meaningful reform requires structural reorganisation rather than simple numerical expansion. The recommendations proposed in the 229th Law Commission Report should be reopened for consideration. Bifurcation would help the Supreme Court focus on matters of constitutional prominence while simultaneously improving access to justice across the country. The long-term solution lies in redefining the Court’s role, drawing inspiration from models such as Germany’s. Only then can the Supreme Court of India reclaim its stature as the authoritative guardian of the Indian Constitution.

References

[1] V. Venkatesan, ‘Ordinance lifts SC strength to 38, Collegium likely to begin deliberations’ (Supreme Court Observer, 18 May 2026) <https://www.scobserver.in/journal/ordinance-lifts-sc-strength-to-38-collegium-likely-to-begin-deliberations/> accessed 20 May 2026.
[2] Press Information Bureau, ‘Cabinet approves increase in the judge strength of the Supreme Court of India by four to 37 from 33’ (Press Release, 5 May 2026) <https://www.pib.gov.in/PressReleasePage.aspx?PRID=2258131&reg=3&lang=1> accessed 20 May 2026.
[3] Advay Vora, ‘Bench expansion and pendency: A timeline’ (Supreme Court Observer, 18 May 2026) <https://www.scobserver.in/journal/bench-expansion-and-pendency-a-timeline/> accessed 20 May 2026.
[4] Supreme Court of India, ‘History’ <https://main.sci.gov.in/history> accessed 20 May 2026.
[5] Law Commission of India, Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in Four Regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai (Report No. 229, 2009).
[6] Murali Neelakantan and Gautam Narayan, ‘Opening the SLP Floodgates Impacts Access to Justice’ (2023 SCC OnLine Blog Exp 81, 29 November 2023) <https://www.scconline.com/blog/post/2023/11/29/opening-the-slp-floodgates-impacts-access-to-justice/> accessed 20 May 2026.
[7] Pritam Singh v. The State AIR 1950 SC 169.
[8] Constitution of India 1950, art. 130.
[9] Ekta Dwivedi, ‘Fragmenting Justice: Why Regional Benches May Weaken the Supreme Court’s Role as a Constitutional Guardian’ (The Constitutional Law Society, 28 August 2025) <https://wbnujscls.wordpress.com/2025/08/28/fragmenting-justice-why-regional-benches-may-weaken-the-supreme-courts-role-as-a-constitutional-guardian/> accessed 22 May 2026.
[10] V. Vasanthakumar v. H.C. Bhatia and Ors. AIRONLINE 2016 SC 328.
[11] See generally ‘Rule of Four’ <https://en.wikipedia.org/wiki/Rule_of_four> accessed 22 May 2026. 
[12] Bundesverfassungsgericht, ‘The Federal Constitutional Court’ <https://www.bundesverfassungsgericht.de/EN/TheFederalConstitutionalCourt/thefederalconstitutionalcourt_node.html> accessed 22 May 2026.
[13] Council of Europe, Report on the Best European Practices in Terms of Constitutional Justice (28 October 2022).
[14] Registry of The Supreme Court of the United Kingdom, A Guide to Bringing a Case to The Supreme Court (October 2009) <https://supremecourt.uk/uploads/A_guide_to_bringing_a_case_to_The_Supreme_Court_The_Supreme_Court_fe900010bd.pdf> accessed 22 May 2026.
[15] Debby Jain, ‘Supreme Court Lifts Ban on 3 Academics Who Wrote NCERT Chapter on Judiciary, Removes Adverse Comments’ (LiveLaw, 22 May 2026) <https://www.livelaw.in/top-stories/supreme-court-recalls-order-blacklisting-3-academics-involved-in-ncert-chapter-on-judiciary-removes-adverse-comments-535273> accessed 22 May 2026.