The Constitutional Quandary of the Supreme Court Judges Bill
The Supreme Court (Number of Judges) Amendment Bill, 2026, has sparked a significant constitutional debate, transcending its immediate objective of increasing the number of judges in India’s highest court. The bill, intended to replace an executive ordinance issued in May, proposes an increase in the number of Supreme Court judges from 33 to 37, excluding the Chief Justice of India. This expansion is widely supported due to the pressing need to address the increasing judicial backlog. However, the method of its passage through Parliament as a money bill has raised important constitutional questions.
Ordinance to Money Bill: A Constitutional Shortcut?
On May 5, 2026, the Union Cabinet approved the introduction of the bill in Parliament, followed by the promulgation of an ordinance on May 16, 2026. The decision to subsequently pass it as a money bill has been contentious. This raises two distinct issues: whether the conditions for ordinance-making under Article 123 were met, and whether the legislation appropriately fits the definition of a money bill under Article 110.
Understanding the Constitutional Architecture of a Money Bill
The distinction between a regular legislative bill and a money bill is a critical aspect of India’s constitutional framework, reflecting a deliberate balance of legislative power between the two Houses of Parliament. Article 110 confines a money bill to specific provisions, including taxation, government borrowing, and appropriation of funds, among others. The word “only” in Article 110 underscores that a bill can only be classified as a money bill if it strictly deals with these specified categories.
Implications of a Money Bill Classification
The classification of a bill as a money bill significantly impacts the legislative process. While the Lok Sabha has the authority to pass a money bill, the Rajya Sabha’s role is limited to making non-binding recommendations, which the Lok Sabha can reject. This raises concerns about whether the 2026 Amendment Bill should have been classified as a money bill, as it fundamentally affects the Rajya Sabha’s legislative power.
Financial Legislation or Financial Consequence?
The government argues that since the salaries and expenses of Supreme Court judges are charged on the Consolidated Fund of India, the bill qualifies as a money bill under Article 110(1)(e). However, this argument does not conclusively address whether the bill itself deals with an increase in charged expenditure. The distinction between substantive legislation and financial implications remains crucial, as highlighted in the precedent set by Article 117(3).
The Unresolved Money Bill Question
The Supreme Court has previously addressed this issue in cases like KS Puttaswamy v. Union of India, where the Aadhaar Act was upheld as a money bill, despite dissenting opinions questioning its constitutional validity. The ongoing debate, further fueled by the Rojer Mathew case, underscores the need for a clearer understanding of the limits of Article 110.
From Precedent to Practice: The Normalization of Money Bills
The use of the money bill procedure for the Supreme Court (Number of Judges) Amendment Bill, 2019, which increased the bench strength from 30 to 33, set a precedent that has not been thoroughly scrutinized. The concern now is the normalization of this practice, which affects the judiciary’s institutional capacity and efficiency.
Ordinance Making: An Independent Inquiry
The use of an ordinance to initially address the issue raises additional constitutional concerns. Article 123 permits ordinances only when Parliament is not in session and immediate action is necessary, a requirement that should be carefully examined.
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Parliamentary Integrity: A Constitutional Imperative
The core issue is not the need for additional Supreme Court judges but whether the legislative process respects constitutional principles. The distinction between a money bill and regular legislation must be preserved to ensure fair legislative practices. In a constitutional democracy, the process of law-making is as significant as the law itself.
Authored by Arya Patel, Associate at Wadia Ghandy & Co., and Samarth Luthra, Advocate at Delhi High Court.
