Expanding Judicial Strength in a Nation with 5.39 Crore Pending Cases

Study OAS Prism | 4 August 2026

On 3 August 2026, the Lok Sabha passed the Supreme Court (Number of Judges) Amendment Bill, 2026, increasing the sanctioned strength of Supreme Court judges from 33 to 37 (excluding the Chief Justice of India), taking the total bench to 38. The bill was passed without substantive debate — a practice that raises serious questions about parliamentary scrutiny of judicial legislation.

Article 124 of the Constitution of India

Article 124(1) establishes the Supreme Court of India and states that it shall consist of a Chief Justice and "such number of other Judges as Parliament may by law prescribe." This provision is the constitutional source of Parliament's authority to determine the Court's size. Crucially, changing the number of judges does not require a constitutional amendment — a simple majority ordinary legislation suffices.

Article 124 also governs how judges are appointed (by the President after consultation with judges of the Supreme Court and High Courts), their tenure (until age 65), removal (by impeachment under Article 124(4)), and salary (charged to the Consolidated Fund of India under Article 112 — ensuring judicial independence from annual budget appropriation).

The Supreme Court (Number of Judges) Act, 1956

When the Constitution came into force in 1950, the Supreme Court began with 8 judges (1 CJI + 7). Parliament enacted the Supreme Court (Number of Judges) Act, 1956 to exercise its Article 124 power. Section 2 of this Act specifies the number of judges. Every subsequent increase has been through amendment to this Section 2 — no fresh legislation needed, just an amendment bill.

The 2026 bill amends Section 2 by substituting "33" with "37", bringing total court strength (including CJI) to 38. Importantly, the bill has retrospective effect from 16 May 2026, since an Ordinance was promulgated on that date and all actions under it are validated by the new Act.

Pendency declined after 1986 but has risen consistently since 2009 despite successive expansions, revealing that judge numbers alone do not determine court efficiency.

Scale of the Problem

India's judicial pendency is one of the most pressing governance failures of the post-independence era. As of the latest available data:

• 5.39 crore cases pending across all courts in India (2026).
• 93,143 cases pending before the Supreme Court alone as of March 2026 — a record high.
• 6,148 new cases filed vs. 4,464 disposed in the SC in March 2026 — filings consistently outpace disposals.
• 15 judges per million population against the Law Commission's 1987 target of 50 per million (India Justice Report 2025).
• 10,000+ cases pending before the SC for over 10 years; 80,000+ before High Courts for over 30 years.
• 33% of High Court positions vacant across India (325 out of 1,122 sanctioned posts as of May 2026).
• 2,200 cases per judge is the national average for district courts; Allahabad and Madhya Pradesh HCs carry up to 15,000 per judge.

The Filings-Disposals Paradox

The core challenge is structural: India's higher courts, particularly the Supreme Court, function as a high-volume appellate forum in addition to a constitutional court. Whereas apex courts in the United States, Germany, and the United Kingdom restrict themselves to questions of constitutional or national significance, India's Supreme Court hears appeals on factual matters, property disputes, service matters, and criminal appeals from across the country. This design flaw generates a perpetually self-replenishing docket that no expansion of judge strength can permanently resolve.

The government promulgated an ordinance in May 2026 before Parliament's Monsoon Session began, under Article 123 of the Constitution. The use of the ordinance route for institutional reform — even straightforward numerical changes — has been a recurring point of debate. The ordinance demonstrates urgency, but critics argue that matters affecting the judicial institution deserve fuller parliamentary deliberation. The bill's passage without debate in the Lok Sabha compounds this concern.

Why More Judges Alone Cannot Fix India's Judicial Crisis

The Evidence from Past Expansions

The historical data presents an uncomfortable truth. When the Supreme Court's strength was raised to 26 judges in 1986, pendency actually fell — from 1,38,190 to 45,887 by 2008. But the 2009 increase to 31 judges and the 2019 increase to 34 judges did not produce the same effect. Pendency rose from 45,887 in 2008 to 59,695 in 2019, and has since climbed to 93,143 in March 2026. The relationship between judge numbers and pendency is non-linear and depends heavily on the nature of incoming cases, court processes, and infrastructure.

The Vacancy Gap: Expansion Without Filling Existing Posts

Before the 2026 amendment, the Supreme Court's sanctioned strength stood at 34 judges. Its working strength fluctuated between 31 and 33. The more pressing problem is at the High Court level: 325 of 1,122 sanctioned positions remain vacant (as of May 2026). When High Courts are understaffed, disposal rates fall, appeals accumulate, and cases eventually reach the Supreme Court in greater numbers. Expanding the SC bench while leaving High Court vacancies unaddressed is akin to widening a highway's final stretch without clearing the bottleneck upstream.

Expert Assessment

Senior advocate Vijay Hansaria has stated that the expansion will not "substantially help" given current backlog volumes. Researchers at Vidhi Centre for Legal Policy's JALDI team have similarly concluded that "increasing the strength of judges has not actually reduced pendency." Their analysis points instead to systemic factors: inadequate support staff, absence of case prioritisation protocols, and the absence of a constitutional mandate restricting the Supreme Court's appellate jurisdiction.

Expanding the sanctioned strength to 38 means nothing if new judges are not appointed swiftly. India's Supreme Court judges are appointed through the Collegium System — an internally evolved process (not originally in the Constitution) through which the CJI and senior-most SC judges recommend appointments. The Supreme Court established this system through three landmark judgments: S.P. Gupta v. Union of India (1982), Supreme Court Advocates-on-Record Association v. Union of India (1993) (the Second Judges Case establishing collegium primacy), and In Re: Presidential Reference (1998) (Third Judges Case requiring at least 4 senior-most judges in the collegium). In 2015, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) — established by the 99th Constitutional Amendment — in Supreme Court Advocates-on-Record Association v. Union of India (2015), holding that NJAC compromised judicial independence. The collegium, therefore, remains the sole mechanism for appointments.

The practical consequence: even after Parliament passes the bill, the four new positions can only be filled through the collegium process, which involves consultation, consensus, and government processing — a procedure that has historically led to significant delays. The 2026 expansion may take months or even years to translate into functional judicial capacity.

• Root cause unaddressed: The SC's role as a mass appellate court — not merely a constitutional court — is the primary driver of its case overload. No bill changes this design flaw.
• High Court vacancies ignored: 325 vacant HC positions generate appellate overflow to the SC. The bill does nothing to accelerate HC appointments.
• No case management reform: Without strict timelines, prioritisation protocols, and case categorisation, even 38 judges will face the same structural pressures.
• Support infrastructure untouched: India's district courts need law clerks, legal researchers, and trained court administrators — not just more benches at the top.
• Passed without debate: The Lok Sabha's failure to debate a bill affecting the constitutional institution of the Supreme Court sets a worrying precedent for legislative oversight.
• Budget allocation unchanged: India's per capita judicial spend is ?182 per year (India Justice Report 2025). No state spends more than 1% of its budget on the judiciary.

Way Forward:

Constitutional and Structural Reforms

  The Supreme Court's jurisdiction needs reorientation. Drawing from international practice, the court should be restricted to matters involving substantial questions of constitutional law and matters of significant public importance. A Constitution Bench division for constitutional references and a regular Bench for urgent rights matters, with a dedicated appeal filtration mechanism, can dramatically reduce the docket.

All-India Judicial Service (AIJS)

  The Law Commission (245th Report, 2014) and various parliamentary committees have recommended the creation of an All-India Judicial Service on the lines of the IAS/IPS, to attract high-quality talent to the subordinate judiciary with uniform service conditions and training. This would address the talent gap at the district court level, where 21% positions remain vacant nationally.

E-Courts and Technological Integration

  The eCourts Mission Mode Project (Phase I, II, and III) aims to digitise India's courts. Phase III focuses on a unified judicial data platform, virtual hearings, AI-assisted case management, and paperless filing. Accelerating this would reduce procedural delays that currently account for a significant portion of pendency at all court levels.

Filling Vacancies Before Expanding Strength

  The most immediate step is to fill the 325 vacant High Court positions and ensure that the new SC strength of 38 is reached at the earliest. Streamlining the collegium recommendation process — potentially through transparent timelines and expedited government processing — is essential for the 2026 expansion to translate into real judicial capacity.

OPSC OAS Mains Paper I | GS — Polity & Governance | 250 Words

The Supreme Court (Number of Judges) Amendment Bill, 2026 increases the sanctioned strength of Supreme Court judges to 38. Critically analyse whether expanding judicial strength can effectively address India's pendency crisis. What structural reforms are necessary for meaningful judicial reform? Illustrate with reference to Odisha's specific judicial challenges.