Was the ordinance route necessary to increase the top court’s sanctioned strength?

Prashant Reddy: No. With Parliament set to convene within weeks, the government could easily have introduced the proposal through the ordinary legislative process. In any event, previous Bills increasing the sanctioned strength of the top court have often passed with minimal debate. In fact, in 2009, the government reportedly introduced a similar measure through a money Bill owing to its numerical disadvantage in the Rajya Sabha. Resorting to an ordinance for a measure of this nature deepens institutional scepticism and fuels unnecessary speculation about the motives of the move.

Does the Supreme Court’s willingness to entertain a large number of Special Leave Petitions (SLPs) contribute to the pendency?

Swapnil Tripathi: Yes. The Constituent Assembly envisaged that the Supreme Court would exercise considerable restraint, particularly in invoking its extraordinary jurisdiction under Article 136 of the Constitution. SLPs were conceived as a remedy to be exercised sparingly. Over time, however, a substantial portion of the Supreme Court’s docket has come to be dominated by SLPs. What is even more concerning is the court’s persistent reluctance to formulate clear guidelines governing the exercise of this jurisdiction. The absence of any meaningful guidelines has contributed to the very accumulation of arrears the institution is now struggling to manage.

PR: The difficulty with Article 136 is that there has never been a clear consensus, even within the Constituent Assembly, on the precise role this jurisdiction was intended to perform. In most other common law jurisdictions, top courts have evolved institutional filters to regulate discretionary appeals, mindful of the finite judicial time available to them. They generally confine themselves to the most contentious or jurisprudentially significant cases. By contrast, as recently as 2016, a Constitution Bench of the Supreme Court declined to narrow the scope of Article 136, observing that no effort should be made to restrict the court’s powers under the provision. The result is an increasingly unpredictable system in which outcomes often appear contingent on the Bench before which a matter is listed. This, in turn, fuels allegations of Bench fixing and corrupt listing practices, eroding the court’s legitimacy in the eyes of the public.

Should the Court confine itself primarily to constitutional cases to reduce backlog?

PR: No. Last year, in Vijaya Bank & Anr. versus Prashant B. Narnaware, a Division Bench of the Supreme Court was called upon to interpret Section 27 of the Indian Contract Act. The case was about the validity of a bond clause; allowing a public sector bank to recover damages from an employee who resigned before completing a mandatory three-year service period. Although framed as a contract law dispute, the issue went to the heart of the right to work and carried significant implications for labour mobility and market competition. Questions of law with such far-reaching consequences must engage the top court’s attention. The real concern is not that the Court hears such cases, but how it hears them. Matters involving substantial questions of law ought to be decided by larger Benches to ensure doctrinal consistency. 

ST: I agree. The Supreme Court was never envisaged as a constitutional court alone. It was also designed to function as the country’s final court of appeal. Over time, however, its appellate jurisdiction has increasingly overshadowed its role in deciding constitutional questions. At the same time, the court must ensure that the inflow of routine appeals is reduced and that intervention is reserved for cases where it is genuinely warranted. I would, however, add an important caveat. Where courts are called upon to decide substantial questions of law, such matters ought ideally to be heard by larger Benches to minimise inconsistencies in interpretation among coordinate Benches.

Will increasing the Supreme Court’s sanctioned strength lead to more conflicting rulings by coordinate Benches?

PR: Yes. An increase in the court’s sanctioned strength is likely to result in greater doctrinal inconsistency, particularly when most judges sit in Division Benches of two. A larger number of Benches will inevitably result in a greater number of cases being entertained and, consequently, more conflicting rulings by coordinate Benches. Further, once divergent views emerge among coordinate Benches and matters require reference to larger Benches for authoritative resolution, delays are likely to become even more pronounced.

ST: I think the polyvocality of the Supreme Court is one of its strengths, but it works as a strength only when accompanied by judicial discipline. The two must complement each other. Judges may arrive at different conclusions on facts, but the application of legal principles must remain consistent.

Does the government need a more consistent litigation policy?

PR: The government was initially expected to introduce a National Litigation Policy (NLP) to reduce the overwhelming volume of cases involving the Union, State governments, and public sector undertakings that continue to clog the judicial system. The government eventually withdrew its assurance to introduce it, leaving unanswered questions about how decisions relating to government litigation are actually taken. There are numerous instances where similar cases remain pending before different High Courts, and instead of allowing at least one High Court to conclusively adjudicate the issue, the government files transfer petitions before the Supreme Court. The result is that these cases often remain pending before the top court for several more years.

ST: The government’s litigation strategy often appears to be driven by a highly result-oriented, case-to-case approach rather than any coherent policy. Courts have repeatedly questioned why the government continues to pursue virtually every dispute up to the Supreme Court, even in cases where its position is clearly unsustainable. There is also a striking lack of institutional consistency. Changes in law officers often lead to shifts in legal strategy, with successive counsels sometimes advancing positions entirely contrary to those taken earlier. Ultimately, it is the individual litigant, lacking the State’s resources and institutional capacity, who suffers the most.

What are the institutional reforms required?

ST: The pendency crisis cannot truly be addressed unless the Supreme Court develops a more robust mechanism to filter out frivolous litigation. This is particularly important in the context of Public Interest Litigations (PIL). The court must strictly apply the guidelines laid down in State of Uttaranchal versus Balwant Singh Chaufal (2010), including ensuring that a PIL is filed for a genuine public cause and not driven by personal or political interests. As for cases already pending before the court, stricter time allocation for oral arguments is essential. Greater reliance should also be placed on written submissions so that judicial time is not consumed by prolonged hearings. 

Is this an opportunity to improve gender representation on the Bench?

PR: Yes. In my view, these four additional positions ought ideally to be filled by women. There must also be greater transparency in the appointments process.

ST: A common justification offered for not appointing more women judges is that there are not enough senior women judges in the High Courts. But the convention of seniority has often been relaxed when it comes to appointing male judges to the Supreme Court.