Can more Supreme Court judges ease case backlog, free up Constitution Benches?

It also gives a more specific justification — the additional posts will make it possible for the Chief Justice of India (CJI) to constitute “Constitutional Benches for required period of days on a regular basis” to hear cases involving substantial questions of law. So can four more judges help?

Why Constitution Benches affect the regular docket

Most of the Supreme Court’s daily work is carried out by several Benches of two or three judges sitting simultaneously. A Constitution Bench requires at least five judges.

Article 145(3) of the Constitution provides that no fewer than five judges may decide a case involving a “substantial question of law” concerning the interpretation of the Constitution. The same minimum applies when the court considers a reference made by the President under Article 143.

To be clear, not every case in which a Constitutional provision is invoked needs to be heard by five judges. The key factor here is whether it involves a “substantial question of law”.

The need for a larger Bench — of seven, nine or more judges — may arise in other ways, too — to resolve conflicts between earlier rulings, reconsider binding precedents or answer questions referred for authoritative determination.

The difficulty is that judges assigned to a Constitution Bench, or such larger Benches, are drawn from the same roster that must continue hearing its regular cases.

When five judges sit together on one constitutional matter, they are unavailable for the smaller combinations through which much of the court’s daily work is conducted. A seven- or nine-judge Bench places a still greater demand on the available judicial pool.

The work of a larger Bench also extends beyond the hearing. Judges must study records and written submissions, deliberate with other members of the Bench and prepare judgments, which may include separate concurring or dissenting opinions.

Sanctioned strength vs working strength

According to the Supreme Court website, the original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and seven other judges, leaving it to Parliament to increase this number.

In the early years, all the judges of the Supreme Court sat together to hear the cases presented before them. Considering the increase in workload, Parliament increased the number of judges from eight in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009 to 34 in 2019.

The 2026 Bill proposes to enlarge the pool to 38 (note that this increase in sanctioned strength is already in effect through the Ordinance mentioned above). If all 38 posts are filled, the CJI — known as the master of the roster — will have more judges to choose from while forming five-, seven- or nine-judge Benches, potentially allowing more judges to remain available for smaller Benches hearing regular cases. It may also become easier to give larger Benches consecutive hearing days rather than fitting their sittings intermittently around other matters.

But sanctioned strength is not the same as working strength. As of August 6, the Supreme Court’s official website listed the CJI and 34 other judges — a working strength of 35, with three vacancies against the enhanced sanctioned strength of 38.

The practical benefit of the increase therefore depends first on the vacant posts being filled and on the court maintaining a high working strength. It will then depend on the number of matters requiring larger-Bench determination and the hearing time assigned to them through the roster.

A separate Constitutional Division?

In 1984, the Law Commission proposed the idea of a structural division for the Supreme Court in its 95th Report — that of a separate Constitutional Division.

Currently, a Constitution Bench is constituted within the existing Supreme Court to hear particular matters. A Constitutional Division would involve a more permanent separation of the court’s constitutional work from its general appellate work.

The Law Commission reiterated the idea in its 125th Report in 1988. Its 229th Report, published in 2009, recommended that a Constitution Bench sit in Delhi while regional “Cassation Benches” dealt with appellate matters arising from High Courts.

Will more judges reduce pendency?

According to the Bill’s Statement of Objects and Reasons, 92,101 cases were pending at the Supreme Court as on January 1, 2026. During 2025, 75,410 fresh matters were instituted and 65,615 were disposed of.

Additional judges can expand the number of Bench combinations available to the court. But the relationship between judge strength and pendency is not automatic.

Reviewing historical data in 2009, the Law Commission observed that earlier increases in the Supreme Court’s strength had not, by themselves, reduced its pending caseload. It had cautioned against treating judge strength as the only factor affecting pendency. The volume and kinds of cases reaching the Court, adjournments, case-management practices and the time required by complex matters also affect disposal.

The increase in sanctioned strength does give the court greater room to manage the competing demands between Constitutional cases and regular work. Whether this results in more regular Constitution Bench hearings — or a measurable decline in pendency — will depend on whether the vacant posts are filled, a high working strength is maintained and how the resulting judicial capacity is used.

The author is an advocate and Constitutional law researcher