The ordinance question before the SC

Why in the News?

The Supreme Court recently witnessed the swearing-in of five new judges after a Presidential Ordinance increased its sanctioned strength from 34 to 38 judges. While two appointments filled pre-existing vacancies, three judges were appointed to posts that exist solely because of the Ordinance.

How has the Ordinance altered the composition of the Supreme Court?

1. Presidential Ordinance: Increased the sanctioned strength of the Supreme Court from 34 judges to 38 judges.
2. Five New Appointments: Five judges were sworn in following the Ordinance.
3. Existing Vacancies: Two appointments filled already existing lawful vacancies.
4. Ordinance-Created Posts: Three appointments were made against posts created solely through the Ordinance.
5. Temporary Basis: The additional posts continue only so long as the Ordinance remains operational or is replaced by legislation.
6. Constitutional Provision: Article 124 leaves determination of the number of Supreme Court judges to Parliament.

Why does the issue raise concerns regarding judicial independence?

1. Security of Tenure: Judicial independence requires judges to occupy constitutionally secure offices free from executive discretion.
2. Executive Dependence: Ordinance-created positions remain dependent upon the executive’s temporary legislative action.
3. Institutional Perception: Independence includes not merely actual autonomy but also the appearance of autonomy from political branches.
4. Temporary Offices: Judges occupying posts that may disappear if the Ordinance lapses could create perceptions of institutional dependence.
5. Basic Structure Doctrine: Judicial independence forms part of the Constitution’s basic structure and cannot be diluted indirectly.

How does the controversy relate to the NJAC judgment and judicial primacy?

1. NJAC Judgment (2015): Supreme Court Advocates-on-Record Association v. Union of India struck down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC).
2. Parliamentary Support: The amendment was passed by 367 votes to 1 in the Lok Sabha and ratified by States.
3. Composition of NJAC: Included the Chief Justice of India, two senior-most judges, the Union Law Minister, and two eminent persons.
4. Veto Provision: Any two members could veto a recommendation.
5. Judicial Concern: The Court held that this arrangement undermined judicial primacy in appointments.
6. Present Contradiction: Critics argue that accepting appointments against Ordinance-created posts appears inconsistent with the Court’s earlier insistence on institutional independence.

Why is the use of Ordinances controversial in constitutional governance?

1. Article 123 Power: Enables the President to promulgate Ordinances when Parliament is not in session.
2. Temporary Nature: Ordinances cease to operate six weeks after Parliament reassembles unless approved.
3. Executive Withdrawal: Ordinances may be withdrawn before parliamentary approval.
4. Democratic Concern: Frequent reliance on Ordinances may bypass normal legislative scrutiny.
5. Institutional Stability: Temporary laws may create uncertainty in long-term institutional arrangements such as judicial appointments.

What has the Supreme Court previously held regarding Ordinance-making powers?

1. D.C. Wadhwa v. State of Bihar (1986): Held that repeated re-promulgation of Ordinances amounts to a fraud on the Constitution.
2. Krishna Kumar Singh v. State of Bihar (2017): Seven-judge Bench ruled that Ordinance-making cannot become a parallel source of legislation.
3. Legislative Supremacy: Ordinances are intended as exceptional measures, not substitutes for parliamentary law-making.
4. Constitutional Morality: Executive convenience cannot replace legislative deliberation.

What legal uncertainties arise if the Ordinance lapses?

1. Reversion of Strength: Supreme Court strength would revert from 38 to 34 judges.
2. Status of Judges: Questions may arise regarding judges appointed against Ordinance-created posts.
3. Unsettled Position: No direct precedent exists concerning judges appointed to judicial offices that cease due to lapse of an Ordinance.
4. De Facto Doctrine: Judicial acts may continue to remain valid under the doctrine affirmed in Gokaraju Rangaraju v. State of Andhra Pradesh (1980).
5. Institutional Litigation: Potential legal challenges may emerge regarding continuation of such appointments.

How has the Collegium’s decision to recommend appointments against Ordinance-created judicial posts generated constitutional concerns?

1. Anticipated Vacancies: Forthcoming retirements are expected to create regular vacancies in the Court.
2. Possible Regularisation: Some Ordinance-appointed judges may subsequently occupy these permanent posts.
3. Continuing Uncertainty: At least one appointment remains dependent on the validity of the Ordinance.
4. Expectation of Ratification: The decision assumes Parliament will replace the Ordinance with legislation.
5. Balancing Priorities: The Collegium sought to address judicial vacancies while relying on future legal regularisation.

Does judicial independence require more than formal constitutional safeguards?

1. Substantive Independence: Independence is not merely the legal authority to disagree with the executive.
2. Perception of Neutrality: Courts must remain visibly detached from political dependence.
3. Institutional Confidence: Public trust depends on the judiciary appearing free from executive patronage.
4. Constitutional Culture: Independence requires an instinctive separation from executive influence, not merely procedural safeguards.
5. Separation of Powers: Long-term legitimacy rests on maintaining clear constitutional boundaries among institutions.

Conclusion

The controversy is less about the competence of the appointed judges and more about the constitutional method through which their offices were created. The episode highlights the tension between addressing judicial vacancies and preserving judicial independence. A constitutional democracy requires not only an independent judiciary but also institutional arrangements that are visibly free from executive dependence and temporary political contingencies.

PYQ Relevance

[UPSC 2014] Critically examine the Supreme Court’s judgement on the National Judicial Appointments Commission (NJAC) Act, 2014 with reference to appointment of judges of higher judiciary in India.

Linkage: The PYQ examines judicial independence and the constitutional principles governing appointments to the higher judiciary. The article questions whether appointments to Ordinance-created Supreme Court posts are consistent with the judiciary’s insistence on institutional independence reflected in the NJAC judgment.