In 1950, India handed a newly minted Supreme Court, eight judges to serve a nation of 350 million people. Seventy- six years later, that very court has thirty-eight judges for a nation of 1.4 billion people and a pending docket that has crossed 93,000 cases at the apex level alone.[1] The math has barely kept pace with the population. On May 16, 2026, the President of India enacted the Supreme Court (Number of Judges) Amendment Ordinance, 2026, substituting the word “thirty-three” with “thirty-seven” in Section 2 of the Supreme Court (Number of Judges) Act, 1956. Thus, bringing the total sanctioned strength of judges to thirty-eight[2], including the Chief Justice of India. The government called it a step towards “speedy and efficient justice” This reflects a recurring pattern of responding to judicial crisis through incremental expansion.
It argues that it is nowhere near enough and that without confronting the structural failures underneath, no number of additional posts will deliver the justice that millions of people have been waiting years to receive.
A COLONIAL BLUEPRINT THAT WAS NEVER MEANT TO SCALE
To understand why this expansion feels inadequate, we would have to go back further than 1950, to the colonial era. The Federal Court of India, established under the Government of India Act 1935, had one Chief Justice and just two puisne judges. That court existed to settle narrow constitutional disputes between provincial governments and the Crown, not to serve 300 million subjects. When the Constitution came into force in 1950, the Supreme Court directly replaced it, and that colonial minimalism quietly found its way into Article 124(1).
The Parliament did expand the bench over the decades, from ten judges[3] in 1956 to thirty-three by 2019[4], but never with any real reckoning of how many judges a democracy of India’s scale actually needs. Most revisions came in response to the growing judicial backlog. The 2026 ordinance follows this exact reactive pattern. India has spent seven decades patching an architecture that was designed for a colonial administration overseeing a subject population, and the patches are beginning to show.
WHAT THE CONSTITUTION SAYS AND WHAT THE LAW HAS RECOMMENDED
The constitutional basis for fixing the number of judges is Article 124(1), which gives Parliament the authority to prescribe the court’s strength. The four posts created by the 2026 ordinance will be filled through the collegium process, which means the expansion announces vacancies without doing anything to accelerate the mechanism that actually fills them.
What the Constitution also does is define what judges give up to sit on the bench. High Court judges retire at sixty-two under Article 217(1). Supreme Court judges retire at sixty-five under Article 124(2). Article 124(7) goes further by barring retired Supreme Court judges from pleading or acting before any court or authority in India after they leave.
This matters because expert bodies have been pointing to exactly these problems for over three decades without any meaningful response. The Law Commission and the Justice Malimath Committee both concluded independently that India’s judge-to-population ratio was dangerously low and recommended raising it to fifty judges per million people. India today stands at around twenty-one.[5]. The Venkatachaliah Commission in 2002 recommended raising the Supreme Court retirement age to sixty-eight and the High Court retirement age to sixty-five, noting that the existing numbers had been fixed without any principled basis and were wholly unsuitable for a court of India’s present scale.[6]. By March 2021, the government confirmed in Parliament that there was no active proposal to revisit the retirement age question at all.[7].
A system that has been told clearly and repeatedly what it needs to do and has chosen every single time not to do it, reaching instead for another incremental expansion that leaves every underlying problem exactly where it was.
THE NUMBERS THAT TELL THE REAL STORY
The government’s stated justification for the expansion is that it will allow the Court to “function more efficiently and ensure speedy justice”[8]. The historical record says otherwise. When the strength was raised in 2008, pendency stood at 45,887 cases. When it was raised again in 2019, it had grown to 59,695. Today, with thirty-eight judges, the pendency at the Supreme Court alone stands at over 93,000[9]. The number of judges goes up, and so does the backlog, because pendency is not primarily an apex court problem. As of March 2026, total pending cases across all levels of the Indian judiciary have crossed 55.8 million. More than 85% of those cases sit in district courts.
Against a sanctioned strength of 1,122 High Court judges, 371 posts remain vacant, and 63.6 lakh cases are pending at that level alone. Every one of those cases carries the possibility of an appeal travelling upward. Filling four seats at the top while leaving 371 empty below does not reduce that flow. It simply adds four more hands to catch what the lower courts could not hold. Senior advocate Vijay Hansaria said it plainly, the expansion “will not substantially help and the Court needs some other formula”[10]. That formula begins not in the Supreme Court but in the High Courts and district courts, where the backlog actually lives. And the reason those courts remain chronically understaffed leads to a question more uncomfortable than any pendency statistic: why, in a country with hundreds of thousands of practising advocates, are judicial posts going unfilled at all?
THE DEEPER PROBLEM: WHY EMINENT LAWYERS REFUSE THE BENCH
Behind the pendency numbers lies a supply-side crisis that rarely gets discussed. India is struggling to attract the most accomplished lawyers to judicial office, and the reasons are embedded in the Constitution itself.
A lawyer typically reaches the height of their practice in their early to mid-fifties. That is also when the offer of a High Court judgeship arrives. Under Article 217(1), a High Court judge must retire at sixty-two, which means a lawyer elevated at fifty-five has at most seven years of service ahead of them. A Supreme Court judge retires at sixty-five. And under Article 124(7), retirement is not just the end of a judicial career; it is the end of a legal career entirely. No pleading, no acting before any court or authority in India, permanently[11].
The financial dimension makes this worse. The Supreme Court has itself observed that meagre pensions for judges drawn from the Bar adversely affect the image of the judiciary.[12]. A system that retires its best judicial minds at sixty-five while leaving them financially exposed is not designed to attract the best legal talent. It is designed to lose it.
WHAT THE REST OF THE WORLD DOES DIFFERENTLY AND WHAT INDIA SHOULD DO
India is not alone in facing this problem, but it is alone in refusing to fix it. Canada, South Africa and Australia retire their judges at seventy-five, seventy and seventy, respectively. The United States confers life tenure.[13]. The UK, whose legal system India’s legal system most directly descends from, retires its justices at seventy-five.[14] and maintains a supplementary panel through which retired justices can be invited to sit on specific cases, retaining institutional expertise without creating permanent posts[15]. India inherited the colonial structure and, unlike its counterparts, never reformed it.
Filling the 371 vacant High Court positions should be treated as a greater priority than expanding the Supreme Court. The bulk of India’s backlog accumulates at the district and High Court levels, and strengthening those courts would reduce the volume of appeals travelling upward far more effectively than adding seats at the top.
The next most impactful change would be raising the retirement age. The Venkatachaliah Commission recommended sixty-eight for Supreme Court judges and scholars. Aparna Chandra, William Hubbard and Sital Kalantry have argued for seventy on the basis of empirical data[16]. A longer tenure would extend the productive years of sitting judges, make judicial office more attractive to senior lawyers and fix the CJI revolving-door problem where the average Chief Justice serves only eighteen months before retirement.
Finally, a permanent Constitution Bench constituted by statute rather than administrative discretion and a supplementary panel on the UK model, allowing recently retired judges to sit on specific matters by invitation. One ends the fragmentation of constitutional jurisprudence. The other retains expertise that the system currently forces out at sixty-five. Both cost less than announcing four new posts and calling it reform.
Seriousness would look like filling 371 High Court vacancies before announcing four new Supreme Court posts. It would look like a retirement age that reflects what the Venkatachaliah Commission recommended in 2002, rather than a number Nehru admitted he had no particular reason for. None of these is a new idea. They have been on paper for decades. The only thing missing is the will to act on them.
Thirty-eight judges and fifty-five million pending cases are not a judicial system. It is a waiting room, and the queue is only getting longer.
Author(s) Name: Oyishee Bose
References:
[1] Supreme Court Observer, ‘March 2026: Pendency Climbs to Over 93,000 Cases’ (Supreme Court Observer, 6 April 2026) https://www.scobserver.in accessed 18 May 2026
[2] Supreme Court (Number of Judges) Amendment Ordinance 2026 (India), promulgated 16 May 2026, amending s 2 of the Supreme Court (Number of Judges) Act 1956 (Act No 55 of 1956)
[3] Supreme Court (Number of Judges) Act 1956 (Act No 55 of 1956), s 2 (as originally enacted)
[4] Supreme Court (Number of Judges) Amendment Act 2019 (Act No 37 of 2019); Krishnadas Rajagopal, ’38 Judges vs 93,000 Caseload: How Increasing Strength of SC Judges Has Impacted Pendency Over the Years’ (The Print, May 2026) https://www.theprint.in accessed 18 May 2026
[5] Law Commission of India, Arrears and Backlog: Creating Additional Judicial (Wo)manpower (Report No 245, 2014); VS Malimath (Chair), Report of the Committee on Reforms of the Criminal Justice System (Ministry of Home Affairs, Government of India 2003) vol 1, para 2.2
[6] MN Venkatachaliah (Chair), Report of the National Commission to Review the Working of the Constitution (Ministry of Law and Justice, Government of India 2002) para 7.3.10
[7] ‘Retirement Age of Judges: Time Is Right to Take the Right Decision’ (LiveLaw, April 2022) https://www.livelaw.in accessed 18 May 2026
[8] Press Information Bureau, ‘Cabinet Approves Increase in the Number of Judges in the Supreme Court’ (Government of India, 5 May 2026) https://www.pib.gov.in accessed 18 May 2026
[9] Rajagopal (n 4)
[10] ibid
[11] Constitution of India, art 124(7); S Dam, ‘Active After Sunset: The Politics of Judicial Retirements in India’ (2023) 51 Federal Law Review 1
[12] In re Refixation of Pension of Retired Judges of the Supreme Court and High Courts (Supreme Court of India) para 21
[13] Constitution of the United States, art III s 1; ‘Retirement Age of Judges in India’ (Legodesk, 2025) https://legodesk.com accessed 18 May 2026
[14] Public Service Pensions and Judicial Offices Act 2022 (UK), s 122
[15] Constitutional Reform Act 2005 (UK), s 38
[16] A Chandra, WHJ Hubbard and S Kalantry, ‘Measuring the Demographic Composition of the Indian Higher Judiciary’ (2018) 11 Indian Law Review 1; Venkatachaliah (n 9) para 7.3.10