The Ordinance question before the SC
The issue of an Ordinance creating new judicial posts touches upon the President/Governor's ordinance-making power under Article 123, the independence of the judiciary, and the delicate balance between the executive, legislature, and judiciary. The Supreme Court's scrutiny of such an ordinance raises questions about judicial review of executive action and potential threat to judicial independence — all high-frequency UPSC themes.
Key facts
- The Ordinance in question created three new judicial posts, raising concerns about tenure security of the appointed judges.
- The Supreme Court is examining the constitutional validity of the Ordinance.
- The court's independence is argued to be contingent on the goodwill of the government and Parliament, highlighting separation of powers tensions.
- Ordinances under Article 123 (President) and Article 213 (Governor) are promulgated when Parliament/Legislature is not in session and must be ratified within 6 weeks of reassembly.
- The SC has previously held that ordinances are subject to judicial review (D.C. Wadhwa case, 1987).
- Judicial tenure security is considered a cornerstone of judicial independence under the Constitution.
The Ordinance has created three new posts, which are occupied by judges who may face uncertainty over their tenure. The court has taken a calculated risk by staking its independence on the goodwill of the government and Parliament.
Concepts to know
Article 123 grants the President the power to promulgate ordinances when Parliament is not in session; the Supreme Court (Number of Judges) Amendment Ordinance, 2026 was issued under this power.
The principle that the judiciary must be free from interference by the executive and legislature. It is ensured through security of tenure, fixed service conditions, and separation of powers under the Indian Constitution.
A constitutional principle dividing state power among the legislature, executive, and judiciary; suo motu actions by courts are debated as potentially encroaching upon executive and legislative domains.
Landmark Supreme Court judgment holding that re-promulgation of ordinances without placing them before the legislature is a fraud on the Constitution; it established that ordinances are subject to judicial review.
Judicial review is the power of courts to examine the constitutional validity of legislative and executive actions. Article 329 significantly restricts judicial review in electoral matters, channelling disputes to election petitions instead.
Grants the Governor of a state the power to promulgate ordinances when the state legislature is not in session, analogous to the President's power under Article 123 at the Union level.
Linked previous-year questions
The UPSC questions this story connects to.
What is the provision to safeguard the autonomy of the Supreme Court of India? 1. While appointing the Supreme Court Judges, the President of India has to consult the Chief Justice of India. 2. The Supreme Court Judges can be removed by the Chief Justice of India only. 3. The salaries of the Judges are charged on the Consolidated Fund of India to which the legislature does not have to vote. 4. All appointments of officers and staff of the Supreme Court of India are made by the Government only after consulting the Chief Justice of India. Which of the statements given above is/are correct? (a) 1 and 3 only (b) 3 and 4 only (c) 4 only (d) 1, 2, 3 and 4
- a.1 and 3 only ✓
- b.3 and 4 only
- c.4 only
- d.1, 2, 3 and 4
Polity · UPSC 2012Consider the following statements: 1. The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review. 2. The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of judiciary. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
- a.1 only
- b.2 only ✓
- c.Both 1 and 2
- d.Neither 1 nor 2
Polity · UPSC 2019Which of the following are included in the original jurisdiction of the Supreme Court? 1. A dispute between the Government of India and one or more States. 2. A dispute regarding elections to either House of the Parliament or that of Legislature of a State. 3. A dispute between the Government of India and a Union Territory. 4. A dispute between two or more States. Select the correct answer using the codes given below: (a) 1 and 2 (b) 2 and 3 (c) 1 and 4 (d) 3 and 4
- a.1 and 2
- b.2 and 3
- c.1 and 4 ✓
- d.3 and 4
Polity · UPSC 2012Consider the following statements: 1. The Parliament cannot enlarge the jurisdiction of the Supreme Court of India as its jurisdiction is limited to that conferred by the Constitution. 2. The officers and servants of the Supreme Court and High Courts are appointed by the concerned Chief Justice and the administrative expenses are charged on the Consolidated fund of India. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
- a.1 only
- b.2 only ✓
- c.Both 1 and 2
- d.Neither 1 nor 2
Polity · UPSC 2005Consider the following statements: 1. The Judges (Inquiry) Bill 2006 contemplates to establish a Judicial Council which will receive complaints against Judges of the Supreme Court including the Chief Justice of India, High Court Chief Justices and Judges. 2. Under the Protection of Women from Domestic Violence Act, 2005, a woman can file a petition before a 1st Class Judicial Magistrate. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
- a.1 only
- b.2 only ✓
- c.Both 1 and 2
- d.Neither 1 nor 2
Polity · UPSC 2007Consider the following statements: 1. The highest criminal court of the district is the Court of District and Session Judge 2. The District Judges are appointed by the Governor in consultation with the High Courts. 3. A person to be eligible for appointment as a District Judge should be an advocate or a pleader of seven years' standing or more, or an officer in judicial service of the Union or the State. 4. When the sessions judge awards a death sentence, it must be confirmed by the High Court before it is carried out. Which of the statements given above are correct? (a) 1 and 2 (b) 2, 3 and 4 (c) 3 and 4 (d) 1, 2, 3 and 4
- a.1 and 2
- b.2, 3 and 4
- c.3 and 4
- d.1, 2, 3 and 4 ✓
Polity · UPSC 2004
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