Money bill or constitutional shortcut? The Supreme Court Judges Bill and parliamentary integrity

The decision to take the Supreme Court (Number of Judges) Amendment Bill, 2026 through parliament as a money bill specifically to replace an executive ordinance promulgated earlier in May raises a profound constitutional question that extends far beyond the immediate and highly practical issue of adding more judges to the highest bench.

The core legislative intent of the Bill itself remains entirely straightforward, as it seeks to replace and re-enact the prior ordinance amending the 1956 Act to increase the Supreme Court's sanctioned strength from 33 to 37 judges excluding the Chief Justice of India. This expansion is an entirely reasonable and widely supported objective given the crushing weight of mounting judicial backlog and the desperate need to improve the Court's capacity to deliver timely justice to the public.

What remains far less straightforward, however, is the constitutional route adopted. The Union Cabinet had publicly approved the proposal for introducing the Bill in Parliament on May 5, 2026, while an ordinance followed on May 16, 2026. The permanent legislative replacement has thereafter been taken through the restrictive money bill procedure.

These circumstances raise two analytically distinct questions: whether the conditions for immediate ordinance-making under Article 123 were satisfied and whether the replacement legislation properly falls within Article 110 of the Constitution.

Under our constitutional framework, the distinction between an ordinary legislative bill and a money bill is not merely a trivial matter of parliamentary procedure meant for textbook debates. It reflects a deliberate and carefully calibrated choice concerning exactly how legislative power is balanced and shared between the two Houses of Parliament. Article 110 strictly confines the classification of a money bill exclusively to provisions dealing with the matters specifically enumerated in clause (1). These include taxation, government borrowing and appropriation of money from the Consolidated Fund of India, but they also include, under Article 110(1)(e), the declaring of expenditure to be charged on the Consolidated Fund or the increasing of the amount of any such expenditure. Article 110(1)(g) further includes matters incidental to clauses (a) to (f). The most crucial word in Article 110 nevertheless remains only, as a bill legally qualifies as a money bill only if it contains provisions dealing with those narrowly prescribed constitutional categories and matters incidental to them.

This strict limitation exists for a profoundly important democratic reason. India's Parliament is fundamentally bicameral, requiring ordinary legislation to secure explicit approval from both Houses to ensure a broad consensus across different political and regional representations. However, pursuant to Article 109, a money bill operates under an entirely different paradigm. It completely strips the Rajya Sabha of its power to reject or meaningfully amend the legislation, relegating the Upper House to making non-binding recommendations within a strict 14-day window that the Lok Sabha remains entirely free to completely reject.

The classification of legislation as a money bill, therefore, does not merely determine its procedural route through the corridors of Parliament. Rather, it fundamentally determines the legal effect of one entire House's participation in making that specific law. The Rajya Sabha is not rendered incapable of discussing a money bill, but it is deprived of its ordinary power to withhold consent or insist upon amendments. This constitutional limitation is precisely why the classification of the 2026 Amendment Bill requires careful scrutiny.

The government's position is admittedly stronger than the mere proposition that adding judges has financial consequences, because Article 112(3)(d)(i) and Article 146(3) expressly treat the salaries, pensions and administrative expenses of the Supreme Court as expenditure charged on the Consolidated Fund of India. When read alongside the government's own admission that these new costs will be met directly from the Consolidated Fund, Article 110(1)(e) supplies a serious textual argument that increasing the sanctioned number of judges necessarily increases charged expenditure.

That textual argument, however, cannot by itself end the constitutional inquiry. Almost every major government policy - whether constructing expansive new public hospitals, expanding state universities, or strengthening the armed forces - carries substantial financial implications. If the mere presence of downstream financial consequences were legally sufficient to transform substantive legislation into a money bill, then the vital constitutional distinction between ordinary legislation and exceptional financial measures would become completely impossible to maintain.

The authentic constitutional question is, therefore, whether the substantive provision of the Bill itself can properly be said to "deal with" an increase in charged expenditure within Article 110(1)(e). Article 124(1) expressly contemplates the Supreme Court consisting of the Chief Justice of India and such larger number of judges as Parliament may by law prescribe. The operative legislative act in the 2026 Bill is accordingly an exercise of that power: it changes the statutory composition of India's highest constitutional court. The Bill does not itself prescribe judicial salaries, appropriate money, or declare a new category of expenditure to be charged. The financial expenditure arises because other constitutional and statutory provisions attach financial consequences to the creation and occupation of those additional judicial offices.

This distinction becomes particularly significant when Article 117(3) is read alongside Article 110. Article 117(3) expressly contemplates a Bill which, "if enacted and brought into operation, would involve expenditure from the Consolidated Fund of India". Such legislation requires the President's recommendation before it is passed, but it does not for that reason alone become a money bill and remains subject to the ordinary bicameral process. The harder constitutional question is one of characterisation: when a substantive institutional law enacted under Article 124(1) necessarily increases charged expenditure, does the law itself "deal with" that increase for Article 110(1)(e), or does it merely constitute legislation which "would involve expenditure" within Article 117(3)? The answer determines whether the concurrence of both Houses can constitutionally be displaced.

The Supreme Court has previously grappled with this exact jurisprudential divide. In KS Puttaswamy (Retd.) v. Union of India, the majority ultimately upheld the Aadhaar Act as a money bill, though Justice Chandrachud delivered a remarkably powerful dissent arguing forcefully that utilizing this specific legislative route was constitutionally impermissible.

The issue became even more pressing in Rojer Mathew v. South Indian Bank Ltd, when the Constitution Bench expressed serious doubt about the Aadhaar reasoning and referred the larger question concerning Article 110 to a larger bench. While those substantive boundaries remain unresolved today, the profound significance of Rojer Mathew lies in its recognition of the constitutional seriousness of this classification. Its decisive rejection of the dangerous proposition that substantive illegality can be immunised from judicial review simply by labeling it an internal parliamentary procedure, is noteworthy.

There is an important historical qualification here, as the 2026 procedure does not actually create an entirely new precedent. The Supreme Court (Number of Judges) Amendment Bill, 2019 similarly increased the bench strength from 30 to 33 utilising the money bill procedure, passing the Rajya Sabha without discussion in a mere 3 minutes. The pressing concern today is not the invention of a new parliamentary device, but rather the dangerous normalisation of an earlier practice whose constitutional foundation in this specific judicial context has never received definitive examination.

These weighty constitutional concerns become particularly critical when the legislation in question directly impacts the institutional structure, capacity and functioning of the judiciary itself. The number of judges sitting on the Supreme Court is not simply a routine budgetary line item to be glossed over, as it intimately concerns the institutional capacity of India's highest court and affects how efficiently the Court can function. It bears upon how quickly monumental constitutional questions can be decided and ultimately upon how effectively everyday citizens can access the justice they are promised. Legislation concerning such a foundational democratic institution deserves rigorous and meaningful parliamentary examination across both chambers, unless it squarely falls within the carefully drawn constitutional exception in Article 110.

The preliminary ordinance route raises a distinct constitutional question that should not be collapsed into the money bill inquiry. Article 123 only permits an ordinance when Parliament is not in session and the President is satisfied that circumstances necessitate immediate action. While the sequence of Cabinet approval followed swiftly by an ordinance does not automatically establish constitutional invalidity, it certainly makes the purported necessity for immediate action a highly legitimate subject of inquiry. Especially since the Constitution Bench in Krishna Kumar Singh v. State of Bihar explicitly emphasised that ordinance-making remains subject to strict constitutional discipline.

There is a profound irony in the current legislative route. The government seeks to quickly expand the Supreme Court specifically to improve the fair administration of justice. Yet, the restrictive Money Bill method chosen actively diminishes the Rajya Sabha’s constitutionally mandated role in reviewing that exact institutional measure.

The central issue confronting the nation is, therefore, not whether India desperately needs 4 additional Supreme Court judges to clear its dockets, as that objective is entirely justified and widely welcomed. The real question is whether legislation enacted under Article 124(1) to fundamentally alter the statutory composition of the Court can constitutionally be disguised as a money bill simply because its implementation necessarily increases expenditure already charged upon the Consolidated Fund. Put differently, does such a law truly "deal with" an increase in charged expenditure under Article 110(1)(e), or is it merely substantive legislation that "involves expenditure" as separately contemplated by Article 117(3)?

If the mere presence of unavoidable financial consequences is deemed sufficient to justify a money bill classification, the vital constitutional boundary separating ordinary bicameral legislation from exceptional financial procedures will completely vanish. The money bill mechanism was carefully designed to protect the government's ability to manage public finance and it cannot become an unscrutinised express route for transformative institutional laws. Ultimately, parliamentary integrity relies on the fairness of the legislative process just as much as the popularity of the outcome. In a thriving constitutional democracy, exactly how a law is made is just as deeply important as the law that is ultimately made.

If Parliament is to remain an institution of rigorous democratic deliberation, mandatory constitutional procedures cannot be treated merely as obstacles to efficiency. The money bill mechanism is an exceptional procedure carefully confined to the subjects specifically enumerated in Article 110; it cannot become an express route for substantive legislation simply because such legislation carries unavoidable financial consequences. At the same time, Article 110(1)(e) must be given its full textual meaning, including where legislation genuinely deals with an increase in charged expenditure. The constitutional task is to identify that boundary faithfully.

Arya Patel is an Associate at Wadia Ghandy & Co.

Samarth Luthra is an advocate practicing before the Delhi High Court.