Tryst with the Constitution: The Supreme Court needs structural reform, not just more judges

Earlier this week, the Union Cabinet approved a proposal to increase the sanctioned strength of the Supreme Court from 34 to 38 judges. The stated objective underlying the proposal is to ensure that the Court “functions more efficiently and effectively ensuring speedy justice.”

The justification is familiar. It is often argued that increasing judicial strength would improve disposal rates, reduce backlog and enable the Court to deal more effectively with its ever-expanding docket. The logic appears intuitive. With close to 93,000 cases presently pending before the Supreme Court, proposals aimed at augmenting the Court’s institutional capacity would naturally appear desirable.

However, the history of the Supreme Court demonstrates that such an approach is at best a temporary stop-gap measure. The issue, therefore, cannot be resolved merely through increasing the number of judges. What is required instead are structural reforms directed at the underlying causes of the Court’s expanding docket and persistent arrears.

Article 124(1) of the Constitution, as originally enacted, fixed the initial strength of the Supreme Court at 7 judges excluding the Chief Justice of India, while simultaneously empowering parliament to increase that strength by law. Exercising this power, parliament subsequently increased the strength of the Court to 10 judges in 1956, 13 in 1960, 17 in 1977, 25 in 1986, 30 in 2008, and 33 in 2019. The underlying justification behind each increase was substantially similar: that augmenting judicial capacity would reduce pendency and improve disposal rates.

However, the historical experience of the Court suggests that such increases have rarely resulted in any sustained reduction in arrears. This was expressly recognised by the Law Commission of India in its 125th Report, which examined the problem of pendency during the first four decades of the Court’s functioning. Analysing the increase in judicial strength during the first decade (1951–1960), the Report observed that the expansion from 7 to 10 judges had “hardly made any significant impact on the ever-rising graph of mounting arrears.” Similarly, while discussing the second decade (1961–1970), the Report noted that although the increase initially provided some relief, “the Court could not cope with the institution.” In relation to the third decade (1971–1980), the Commission concluded that the “increased judge strength made no difference” and emphasised the need for more substantial institutional reform.

The historical record, therefore, demonstrates that increasing judicial strength may provide temporary institutional relief, but it has not structurally solved the problem of pendency before the Supreme Court.

The issue of pendency before the Supreme Court cannot be understood merely as a problem of inadequate judicial strength. It is equally a consequence of the gradual expansion and transformation of the Court’s jurisdiction.

The framers of the Constitution vested the Supreme Court with wide powers. The Court was conceived not merely as a constitutional court, but also as the apex appellate court of the country. At the inaugural sitting of the Supreme Court, the first Attorney General, MC Setalvad, remarked that the Court’s powers would be “wider than those exercised by the highest court in any country in the Commonwealth or by the Supreme Court of the United States.” Yet, notwithstanding the breadth of its jurisdiction, the underlying expectation was that the Court would exercise its powers with considerable circumspection and remain closely tethered to constitutional and statutory limitations.

This institutional understanding is reflected in the remarks of Chief Justice HJ Kania at the Court’s inaugural sitting. Emphasising the limits of the judicial function, Kania observed that it was not the role of the judiciary to “supervise or correct the laws passed by the legislature as an overriding authority.” The duty of the Court, he clarified, was to apply the law as enacted while identifying lacunae only to facilitate legislative correction, should parliament so desire. The underlying conception of the Court was, therefore, one of adjudicatory restraint operating within recognised constitutional boundaries.

Over time, however, the Court has assumed a significantly broader institutional role. This transformation is perhaps most visible in the exercise of its Special Leave jurisdiction under Article 136. The provision was framed in notably restrictive language. It empowers the Court to grant “special leave” to appeal against judgments or orders passed by courts and tribunals. The jurisdiction was conceived as discretionary, residuary and exceptional in character, rather than as a routine appellate mechanism. The Court itself has repeatedly observed that Article 136 ought to be exercised sparingly and only in exceptional circumstances.

In practice, Article 136 has gradually become one of the principal sources of the Supreme Court’s docket. The consequence is that the Court increasingly functions not merely as a constitutional court, but as a regular appellate forum for a range of civil and criminal disputes. Significantly, while the Court has consistently emphasised the extraordinary nature of the jurisdiction, it has refrained from laying down clear doctrinal standards governing the exercise of its discretion under Article 136. Resultantly, the effective boundaries of the jurisdiction remain uncertain and often vary depending upon the exercise of judicial discretion across benches, thereby encouraging litigants to pursue even routine disputes before the Supreme Court in the hope of securing relief.

The expansion of the Court’s jurisdiction is equally visible in the evolution of Public Interest Litigation (PIL), which has enabled the Court to expand access to justice for disadvantaged groups and address governments' failure to comply with the law. However, the jurisdiction has also substantially altered the procedural architecture of the Court. The Court increasingly issues a writ of continuing mandamus to monitor investigations, supervise administrative implementation and keeps the matters pending for prolonged periods through successive interim directions.

Further, over time, the jurisdiction has expanded to an extent where virtually any issue framed as involving “public interest” could potentially be brought before the Court, often accompanied by requests for wide-ranging remedial directions. While the Supreme Court has developed a clear test governing maintainability in PIL proceedings, the application of these standards has remained inconsistent across benches.  In this regard, the recent efforts of Chief Justice Surya Kant to emphasise procedural discipline and curb misuse of PIL jurisdiction are welcome.

However, because the Court functions simultaneously through multiple division benches, the application of established maintainability standards continues to remain uneven. The consequence is not merely an increase in petitions, but the creation of institutional uncertainty regarding the effective limits of the Court’s jurisdiction. Litigants continue approaching the Court because the exercise of judicial discretion remains difficult to predict with consistency.

This phenomenon can be best explained by borrowing the words of Nani Palkhivala, who decades ago, invoked the metaphor of a casino to describe modern litigation. He observed that “the court is no longer looked upon as a cathedral but as a casino: if you are dissatisfied with the trial court’s judgment, you double the stakes and go to the Division Bench; if you are dissatisfied with the Division Bench judgment, you treble the stakes and go to the Supreme Court.”

Increasing judicial strength may also produce an additional institutional consequence - doctrinal inconsistency. Unlike several constitutional courts across the world, the Indian Supreme Court predominantly functions through division benches of two or more judges. As the sanctioned strength of the Court increases, the number of simultaneously functioning benches correspondingly increases. While such expansion may improve disposal rates in the short term, it also heightens the possibility of conflicting opinions across coordinate benches - a concern that has remained persistent in the Court’s functioning.

The issue of pendency cannot, therefore, be addressed merely through increased judicial strength. It equally requires greater procedural discipline in the exercise of the Court’s jurisdiction. This would necessitate more consistent application of the procedural thresholds governing maintainability and admission under the Court’s various jurisdictions, greater restraint in entertaining matters that do not warrant the Court’s intervention and clearer institutional limits concerning the exercise of judicial discretion in questions of governance and policy. Unless accompanied by such structural reforms, increases in judicial strength are likely to remain temporary responses to a deeper institutional problem.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.