The Hindu | Op-Ed | May 29, 2026
Following the SC Collegium’s recommendation (May 27, 2026) of 5 elevations to the Supreme Court — moving toward the sanctioned strength of 34 — the editorial questions whether numerical expansion will dent the ~80,000-case backlog. The argument: the real drivers of pendency are admission-stage discretion, government litigation, and the SC’s expanding original/constitutional docket — not insufficient judges. The op-ed recommends structural fixes — National Court of Appeal, admission filtering mechanisms, and a separate constitutional bench — over numerical expansion.
The Argument in One Line
The Supreme Court’s pendency problem is not a bottleneck-of-judges problem; it is a filtering-and-design problem — and adding judges without fixing the admission funnel, government litigation behaviour, and docket architecture will simply produce more pendency at higher cost.
The Numbers
| Indicator | Value |
|---|---|
| SC sanctioned strength | 34 (1 CJI + 33 judges) under SC (Number of Judges) Act, 1956 |
| Current strength (post-May 2026 elevations, if approved) | ~33 (with vacancies still likely) |
| Pending cases (May 2026) | ~80,000 |
| Annual fresh filings | ~55,000-60,000 |
| Annual disposal rate | ~50,000-55,000 |
| Net pendency growth | 5,000-10,000 cases/year |
| Special Leave Petitions (SLP) share of pendency | ~60-65% — the largest category |
| Constitution Bench (5+ judges) matters | Several hundred pending |
| Government as litigant | ~50% of all SC cases |
The Real Drivers of Pendency
1. Admission-Stage Free-for-All
- Under Article 136, the SC accepts Special Leave Petitions (SLPs) with wide discretion.
- ~70-80% of SLPs filed are dismissed at admission — but each consumes hearing time.
- The Court has not adopted a certiorari-style filtering mechanism like the US Supreme Court (which hears <100 cases/year out of ~7,000 petitions).
- Solution: A tighter pre-admission screening (Justice K.K. Mathew Committee 1970s, Law Commission Reports).
2. Government as Largest Litigant
- The Government of India is involved in ~50% of SC cases.
- Many of these are routine appeals in tax, service, land acquisition matters.
- The National Litigation Policy (UPA 2010, revised 2015) sought to limit government litigation but had limited effect.
- Solution: A statutory threshold for government appeals (e.g., minimum monetary value, principle clarification).
3. SLP Inflation
- Article 136’s wide discretion has produced an SLP industry — lawyers routinely advise SLP filing as a procedural step.
- 75%+ of SC filings are SLPs.
- Most are routine challenges, not constitutional questions.
- Solution: Stricter SLP gatekeeping; mandatory pre-mention review.
4. Constitutional Docket Expansion
- The SC’s Constitution Bench (5+ judges) docket has grown — Aadhaar, GST, demonetisation, electoral bonds, hijab, marital rape — all consuming weeks of judge time per case.
- This is intrinsically valuable but crowds out routine appellate work.
- Solution: Separate Constitution Bench with dedicated judges (Justice Krishna Iyer’s proposal).
5. Hierarchy Inefficiency
- High Court appeals reach SC; SC’s own decisions reach review benches; review reaches curative petition.
- Multiple layers but no intermediate stage between HC and SC for routine matters.
The Proposed Structural Reforms
Reform 1: National Court of Appeal (NCA)
| Element | Detail |
|---|---|
| Proposal | Multi-bench appellate court between HCs and SC for routine appellate work |
| Origin | Bihar Legal Support Society Commission (1990s); Law Commission 229th Report (2009) |
| Earlier advocacy | Justice V.R. Krishna Iyer’s published advocacy for NCA across speeches and articles |
| Function | Hear appeals on non-constitutional matters |
| SC retained role | Constitution Bench matters + select appeals |
| Branches | Regional benches (Delhi, Mumbai, Chennai, Kolkata) for access |
| Status | Not implemented — political and legal questions on Article 136 dilution |
Reform 2: Admission Filtering
| Element | Detail |
|---|---|
| US model | Certiorari — SC chooses to hear only ~1% of petitions |
| Indian challenge | Article 136’s wide discretion is integral to the SC’s identity |
| Compromise | Tighter procedural filters — case-type bands, mandatory caveat process, pre-mention review |
| Outcome | Reduces SLP-stage backlog |
Reform 3: Separate Constitution Bench
| Element | Detail |
|---|---|
| Proposal | 3-4 senior judges rotated as a dedicated Constitution Bench |
| Volume | All Article 145(3) matters (Constitution Bench-mandated) |
| Benefit | Decouples constitutional from appellate workload |
| Risk | Two-track court could create perception of dual-class justice |
Reform 4: Government Litigation Reform
| Element | Detail |
|---|---|
| National Litigation Policy | Revise with hard limits |
| In-house screening | Government can challenge in HC only if a case meets criteria |
| Threshold for SC | Monetary value + principle requirement |
| Department of Justice | Empowered to refuse to file appeals |
Reform 5: Time-Bound Hearing
| Element | Detail |
|---|---|
| CJI’s tenure | Average ~2 years — limits long-term planning |
| Case-management | Justice U.U. Lalit (2022) introduced lists-of-the-week; partial success |
| Hearing day limits | Cap on hearing days per case (with exceptions) |
Comparative — Other Apex Courts
| Court | Composition | Annual disposal | Filter mechanism |
|---|---|---|---|
| US Supreme Court | 9 judges | ~70-80 hearings/year out of 7,000+ filings | Certiorari (1% admission rate) |
| UK Supreme Court | 12 justices | ~70-90 cases/year | Permission required |
| Australian High Court | 7 justices | ~75-100 cases/year | Special leave required |
| Indian Supreme Court | 34 judges | ~50,000 disposals; ~80,000 backlog | Wide Article 136 discretion |
India has ~3x the judges but ~100x the cases of comparable apex courts — a structural mismatch.
The Risks of Numerical-Only Expansion
| Risk | Substance |
|---|---|
| More judges = more SLPs — capacity expansion can increase filing as lawyers feel SC access is easier | |
| Coordination cost — 34-bench court has 8+ benches simultaneously; CJI coordination strained | |
| Consistency risk — different benches produce inconsistent rulings on similar matters | |
| Specialisation absence — every judge hears every type of case; no specialisation | |
| Constitution Bench formation friction — pulling 5 judges off appellate work disrupts schedules | |
| Quality dilution — risk of weak appointments to fill numbers |
What the Hindu Editorial Demands
| Demand | Substance |
|---|---|
| NCA establishment | Via constitutional amendment if needed |
| Article 136 reform | Statutory + judicial constraints on SLP scope |
| Government litigation cap | Hard threshold on appeals |
| Constitution Bench specialisation | Dedicated bench with rotation |
| Case management technology | AI-assisted hearing scheduling, case categorisation |
| Appointment quality | Don’t sacrifice rigour for numerical fill |
| CJI term reform | Longer tenures (Justice Khanna recommended structural CJI reform) |
The Memorandum of Procedure (MoP) Backdrop
The MoP governing appointments has been unfinalised since 2015. Issues:
- National security veto.
- Reasons for rejection.
- Time limits for executive action.
The SC Collegium’s May 27, 2026 recommendations of 5 elevations is part of this unresolved appointment framework.
Wider Significance
- Justice delayed = justice denied — pendency erodes trust in the judicial system.
- Constitutional governance depends on a functional apex court.
- Federalism — HCs’ authority is diminished if SC routinely accepts SLPs.
- Access to justice — pendency disproportionately hurts indigent litigants.
- Rule of law signal — international investors track court efficiency.
Counter-Arguments
| Counter | Substance |
|---|---|
| NCA fragments the court | Constitutional unity of the SC matters |
| Article 136 is foundational | Restricting it requires constitutional amendment |
| More judges = more disposal | Numerical capacity does help marginally |
| Specialisation = bench-shopping | Risk of strategic case-filing in particular benches |
| CJI’s discretion preserves flexibility | Allows the court to respond to constitutional emergencies |
Way Forward
- Phased NCA pilot — start with a single regional bench.
- Article 136 procedural reform — pre-mention review, time limits.
- National Litigation Policy hard floor — government appeals only above ₹X.
- Specialisation of HC benches — relieve SC of routine matters.
- CJI-coordinated case management — AI-assisted scheduling.
- Constitutional Bench reform — dedicated bench, rotated panel.
UPSC Relevance
GS Paper 2 — Polity & Governance:
- Structure, organization and functioning of the Executive and the Judiciary.
- Appointment to various Constitutional posts.
Analytical hooks for Mains:
- Article 136 — SLP architecture and apex court burden.
- National Court of Appeal — constitutional and administrative considerations.
- Government as the largest litigant — accountability and reform.
Facts Corner
- SC sanctioned strength: 34 (1 CJI + 33 judges) under SC (Number of Judges) Act, 1956 (amended 2008, 2019).
- SC pendency (May 2026): ~80,000 cases.
- SLPs as % of pending: ~60-65%.
- Government as litigant: ~50% of SC cases.
- Constitution Bench: Article 145(3) — substantial questions of constitutional law.
- Article 136: Special Leave Petition — wide SC discretion.
- CJI Surya Kant sworn in November 24, 2025.
- NCA proposal: Law Commission 125th Report (1988) and 229th Report (2009); Justice V.R. Krishna Iyer’s published advocacy in speeches and articles.
- National Litigation Policy: UPA 2010; revised 2015.
- MoP (Memorandum of Procedure): unfinalised since 2015.
- US SC: ~9 judges; ~70-80 hearings/year; certiorari-driven.
- Justice U.U. Lalit (CJI 2022): Introduced morning-mention system to reduce backlog.
Editorial source: The Hindu, May 29, 2026 | Cross-link: Daily May 28 — SC Collegium 5 elevations
Source: Will Increasing SC Strength Solve the Pendency Problem? The Case for Structural, Not Numerical, Reform — Ujiyari.com | Free UPSC & State PCS Editorial Analysis
