–Apeksha Kachhawaha, graduate from Maharashtra National Law University, Nagpur, and Kshitij Saruparia, graduate from NALSAR University of Law, Hyderabad
On 5 May 2026, the Union Cabinet approved a proposal to introduce the Supreme Court (Number of Judges) Amendment Bill, 2026 in the upcoming Parliamentary session. The press release from the Press Information Bureau described the Bill as providing for an increase in judicial strength from 33 to 37 (excluding the Chief Justice of India) and stated that the increase would allow the Court to function more efficiently and ensure speedier justice. No circumstance was identified that could not wait for Parliament to convene.
Eleven days later, on 16 May 2026, the President promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026 under Article 123 of the Constitution. The Gazette notification states that the President was satisfied that circumstances exist rendering it necessary to take immediate action. It identifies no specific emergency. The operative clause substitutes the word “thirty-three” with “thirty-seven” in section 2 of the Supreme Court (Number of Judges) Act, 1956, on terms identical to the Bill the Cabinet had approved eleven days earlier.
The gap between these two events is the constitutional question this post examines. The argument made here is narrow but its implications are not. It is not that this Ordinance is necessarily unconstitutional, nor that the President lacked any material on which to act. The argument is that the requirement of necessity laid down in Article 123 of the Indian Constitution creates a constitutional precondition, that this precondition is subject to judicial review under Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1, and that the executive’s own contemporaneous record, when it documents a simultaneous plan for ordinary legislation on the same subject, should be treated as admissible and relevant evidence in any such review. Whether that evidence is sufficient to displace the necessity requirement is a question for a court. What the current doctrine does not answer is whether that evidence is relevant at all. We suggest that it should be.
What Article 123 Actually Requires
Article 123(1) of the Indian Constitution empowers the President to promulgate an Ordinance “if at any time, except when both Houses of Parliament are in session,” the President “is satisfied that circumstances exist which render it necessary for him to take immediate action.” Two conditions are textually present. Parliament must not be in session. And the circumstances must render immediate action necessary.
The first condition is satisfied here: Parliament’s Budget Session ended on 2 April 2026 and the Monsoon Session had not yet convened. The second condition is where the analysis begins. Article 123 does not say the President may act whenever Parliament is not sitting. It says the President may act when Parliament is not sitting and when the circumstances render immediate action necessary. The word “necessary” is not ornamental. It describes an emergency gap-filling function, not a parallel legislative channel that becomes available whenever the inter-session window opens.
The Supreme Court addressed this structural point in D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378. Chief Justice Bhagwati held that the ordinance power is “essentially a power to be used to meet an extraordinary situation” and that primary law-making authority under the Constitution lies with the legislature, not the executive. Wadhwa was decided in the context of systematic re-promulgation, a pattern of keeping ordinances alive for years without legislative approval, and the factual distance between Bihar’s practice and a single first-instance Ordinance is large. But the structural principle the judgment articulates is not confined to re-promulgation cases. It describes what Article 123 is for: emergency gap-filling when the legislature cannot act, not an alternative route for measures that can wait.
That principle was developed further in Krishna Kumar Singh v. State of Bihar. The plurality, authored by Justice Chandrachud, held that the Ordinance-making power does not confer on the President a parallel source of law-making authority, that re-promulgation is a fraud on the Constitution, and critically, that Presidential satisfaction under Article 123 is not immune from judicial review, particularly after the Forty-Fourth Amendment deleted the original clause that had placed that satisfaction beyond scrutiny. The reviewability test established by the Bench is deliberately narrow: courts will examine whether the satisfaction requirement was based on some relevant material and whether it amounted to a fraud on power or was actuated by an oblique motive. The Bench did not open the door to proportionality review of urgency, and the argument made here does not require it to have done so.
The Evidentiary Question the Cabinet Record Creates
The judicial review framework developed in Krishna Kumar Singh confines courts to a specific inquiry: was there relevant material to trigger the presidential ordinance-making power, and was that power exercised for a purpose consistent with its constitutional design? The argument put forward here operates squarely within that framework.
The strongest objection to what follows is one both the constitutional text and the doctrine support: legislative planning and constitutional necessity are not mutually exclusive categories. A government might approve a Bill for the next session while simultaneously concluding that circumstances have shifted in the inter-session period, making immediate action necessary before Parliament convenes. That is not only theoretically possible; it is sometimes true. Nothing in Article 123 or in the ordinance jurisprudence precludes a government from doing both, and the argument here does not claim otherwise.
The question is more limited. When the executive’s own contemporaneous record documents a simultaneous plan for ordinary legislation on precisely the same subject, that record is evidence going to the satisfaction review that Krishna Kumar Singh permits. The Cabinet’s 5 May 2026 decision is not merely a prior event. It is a documented executive statement, carried in the Press India Bureau (PIB) press release, describing the increase in judicial strength as a matter suitable for introduction in the upcoming Parliamentary session. When the same government, eleven days later, invokes emergency legislative authority for the identical measure, that record is relevant to the question of whether any genuine urgency existed, not because legislative planning and necessity are mutually exclusive, but because a government that simultaneously holds both positions faces an evidentiary burden it cannot discharge by boilerplate recital.
The distinction matters for how courts would engage with a challenge. Asking a court to evaluate the adequacy of urgency is asking it to substitute its policy judgment for the executive’s, which the Krishna Kumar Singh framework does not authorize. Asking a court to take the government’s own contemporaneous record into account in assessing whether any satisfaction of necessity existed is asking it to apply the framework the Constitution Bench itself established. Those are different requests. The present case, if litigated, would raise the second question, not the first.
A further point on the scope of review. The Krishna Kumar Singh Bench held that courts will scrutinize whether satisfaction constitutes a fraud on power or was actuated by an oblique motive. “Fraud on power” is a term of art in Indian public law that requires more than weak or thin necessity evidence; it implies misuse of the power for a purpose that departs from its constitutional design. Whether the circumstances of this Ordinance rise to that standard is not something this post asserts. What can however be asserted is that the executive’s own record of simultaneous legislative planning is the kind of material a court reviewing satisfaction would need to consider, because it bears on whether the constitutional precondition was genuinely engaged or merely formally recited.
The Institutional Design Problem
The constitutional design of Article 123 is one that parliamentary systems with executive emergency legislation powers share and have struggled with in varying ways. The common problem is institutional: what prevents the executive from treating the inter-session period as a convenient alternative legislative channel for measures it would prefer not to expose to parliamentary debate? In India, the answer from Wadhwa and Krishna Kumar Singh is that the necessity requirement performs that function, and that courts retain jurisdiction to review whether it was engaged. The question this post raises is whether that jurisdiction is effective if courts would treat the executive’s own records as legally irrelevant to the inquiry.
The historical record of how this particular subject has been handled provides relevant context, though not a binding legal constraint. Since 1956, every increase in the Supreme Court’s numerical strength has been enacted through ordinary legislation: the Acts of 1960, 1977, 1986, 2008, and 2019 all followed the Parliamentary route without any suggestion that urgency made the legislative channel insufficient. That consistent practice does not create a legal estoppel preventing resort to Article 123 for this subject. What it does is inform the assessment of whether the executive genuinely perceived urgency in the current instance. A subject that has been treated as fit for ordinary legislation on five previous occasions by different governments over sixty years is not one for which a boilerplate necessity recital carries obvious weight.
The more durable constitutional concern is forward-looking. If the executive’s own contemporaneous record of parallel legislative planning is treated as irrelevant to the satisfaction review, then necessity under Article 123 becomes, in practice, whatever the executive declares it to be at any inter-session moment. The Wadhwa Constitution Bench expressed the concern that the ordinance power should not be “perverted to serve political ends.” Whether any perversion occurred here is a question this post deliberately does not answer. The question it does answer is that the executive record is legally material to that inquiry, and that current doctrine, if applied honestly, provides the mechanism to consider it.
What the Monsoon Session Will and Will Not Clarify
Article 123(2)(a) requires every Ordinance to be laid before both Houses of Parliament, where it will cease to operate six weeks after reassembly unless replaced by legislation. The Monsoon Session will almost certainly see this Ordinance converted into the Bill the Cabinet originally approved. That conversion will moot any individual challenge.
But the mootness of a challenge to this particular Ordinance does not settle the doctrinal question it raises. Krishna Kumar Singh established that Presidential satisfaction is reviewable. It did not specify exhaustively what evidence is admissible in that review. The present case, whether or not it reaches a court, identifies one category of evidence that should be: the executive’s own contemporaneous records of parallel legislative planning. If that category is recognized, Article 123 retains its function as a genuine emergency power with a real precondition. If it is not, the precondition exists in text but not in practice, because no government that confines itself to boilerplate recitals will ever fail to satisfy it.
The Monsoon Session will close the legislative question. It will not close the constitutional one. The next time the executive moves from legislative planning to emergency Ordinance on the same measure in the same inter-session period, the doctrinal gap identified here will still need an answer. Whether courts are willing to treat executive self-evidence as material to a Krishna Kumar Singh satisfaction inquiry is the question the Constitution has not yet resolved, and which the current case puts on the table.
Suggested citation: Apeksha Kachhawaha and Kshitij Saruparia Kshitij Saruparia, When a Bill Becomes an Ordinance: Executive Self-Evidence and Article 123’s Necessity Requirement, Int’l J. Const. L. Blog, Jul. 10, 2026, at: http://www.iconnectblog.com/when-a-bill-becomes-an-ordinance-executive-self-evidence-and-article-123s-necessity-requirement/