An ordinance must, by the Constitution’s text, name a circumstance. The Supreme Court (Number of Judges) Amendment Ordinance, 2026, promulgated on May 17, names none. Its preambular recital reproduces Article 123 verbatim. ‘WHEREAS Parliament is not in session and the President is satisfied that the circumstances exist which render it necessary for her to take immediate action’: that is the recital, and it supplies no fact for the constitutional formula to attach to. The substantive change the ordinance effects is one word: ‘thirty-three’ in section 2 of the Supreme Court (Number of Judges) Act, 1956 becomes ‘thirty-seven’. The procedural change is greater than the substantive one. So is what it conceals.Pendency at the Supreme Court is, and has been, in the public domain. The sanctioned strength of 33 is set by statute. The proposal to raise it reached the government in March 2026, from the office of Chief Justice Surya Kant. Parliament was then sitting through the second leg of the Budget Session, which continued until April 2. The government did not introduce a Bill. The Cabinet took five weeks more to clear the proposal, on May 5. The president signed the ordinance 11 days after that. The Monsoon Session begins on July 21.On these facts the ordinance’s recital is doubly empty. The first limb, that parliament is not in session, is true only in the trivial calendar sense. It elides the question of why the legislature was not consulted while it was sitting. The second limb, that immediate action is necessary, is unsupported by any specific reason. The Cabinet note that preceded the ordinance was a policy decision with reasons; the recital that followed is an incantation without them. The intervening event that converts a routine policy choice into a constitutional emergency is nowhere named. None is named because none occurred.The case the Union government has not madeThe official justification rests on a single proposition: pendency. The Supreme Court’s docket has crossed 93,000 cases as of March 31, 2026. Chief Justice Surya Kant has welcomed the move and pointed to 25 Constitution Bench cases awaiting hearing. Four extra judges, the Union government says, will help. The historical record refuses the inference.In 2008, the strength was raised from 26 to 31; pendency then stood at 45,887. In 2019, the strength was raised again from 31 to 34; pendency stood at 59,695. Each expansion has been followed by a rise in pendency, not a decline. Prashant Reddy, writing in 2019 on the eve of the last amendment, argued that the variable that matters is not bench strength but Article 136. The Supreme Court continues to entertain special leave petitions on a vast scale. Additional judges will therefore mean additional admissions, not faster disposals. The court’s annual report for 2000 recorded a pendency of 20,334 with 26 judges. The court today has more than four times that pendency with a third more judges.Reddy’s argument has been corroborated. Jyotika Randhawa of the JALDI team at the Vidhi Centre for Legal Policy recorded the same disjunction earlier this month. Senior advocate Vijay Hansaria, in the same report, noted that delays at the district level feed into higher court pendency. The apex court, he added, is in any case running near full strength. The bottleneck lies elsewhere: in the court’s appellate appetite, in its case-management practices, and in the 371 vacancies across 1,122 sanctioned high court judgeships. Pendency across the high courts exceeds 63 lakh cases. None of this is addressed by adding four more judges in the top court.The CJI’s proposal, sent to the government in March 2026, points to a different rationale: a permanent Constitution Bench. That is a coherent objective. It is also not the one publicly offered. A standing five-judge bench would require not only four new judges but a fundamental rearrangement of how the court allocates its time. The ordinance promises the first and is silent on the second. Meanwhile, the existing vacancy at the court remained unfilled, 122 days into the CJI’s tenure without a single collegium recommendation. The present sanctioned strength has not been used. To insist that it must now be raised by ordinance is to mistake legislative form for institutional urgency.How an emergency power became routineArticle 123 was drafted as exceptional and conditional. Its two limbs were meant to be read together: emergent need plus inability to wait for the legislature. The Constituent Assembly, as P.D.T. Achary has recorded, debated whether the power should exist at all. The provision survived on the assurance that it would not be used as a substitute for parliamentary deliberation. That assurance has not held.Shubhankar Dam’s Presidential Legislation in India (Cambridge, 2014) catalogues the steady migration of ordinances from emergency device to surrogate legislation. The pattern has outlasted every political composition. The Modi government, by April 2021, had issued 76 ordinances in seven years, surpassing the UPA’s ten-year tally of 61. The Wire’s own coverage from 2015 documented an LARR ordinance re-promulgated until it died of legislative neglect. The Enemy Property Ordinance was promulgated five times in 2016 before parliament finally enacted the Bill in 2017. The present ordinance is not of that pedigree. It is of a different but related kind: a first-time ordinance for which the constitutional warrant has not been supplied. The judges it permits cannot, in any case, be appointed until the collegium recommends them under Article 124. The ordinance accelerates no real-world step. It only displaces the legislature.What the Supreme Court has saidThe court has, on two occasions, set down what Article 123 is not. In D.C. Wadhwa vs State of Bihar (1987), a constitution bench described re-promulgation of ordinances as a ‘colourable exercise of power’ and a ‘fraud on the Constitution’. Justice P.N. Bhagwati, speaking for the bench, located the principle clearly. The ordinance power is ‘essentially a power to be used to meet an extraordinary situation’ and cannot be ‘perverted to serve political ends’. In Krishna Kumar Singh vs State of Bihar (2017), a seven-judge bench went further. It affirmed that the satisfaction of the President under Article 123, and the Governor under Article 213, is not immune from judicial review.Two qualifications are due, and our analysis has weighed them. Both judgments centred on re-promulgation, not first-time ordinances. Neither held that ordinances must satisfy a heightened evidentiary test before promulgation. What they did establish, however, is the doctrinal frame: the ordinance is an emergent power, not a parallel legislative track. Krishna Kumar Singh, by a 5:2 majority, held that the duty to lay an ordinance before the legislature is mandatory. Justice D.Y. Chandrachud, writing for the majority, declined to immunise the satisfaction recital from review. The legal test is exacting in principle, even if it is rarely applied in practice.The present ordinance furnishes no material that would satisfy the Wadhwa standard, if it were tested. Parliament was not in session because it stood prorogued on the government’s own calendar. The next session was already scheduled. The Union government advances no claim that delay would cause irreversible harm. A Cabinet note, a press release, and a presidential signature have taken the place of a debate on the floor of either House.Grounds for challenge, and a question that outlasts itThe grounds for a constitutional challenge are present and several. The recital under Article 123 names no circumstance. The chronology supplies no urgency. The proposal was available during a sitting session and was not introduced. The Cabinet decision rests on policy reasons that could and should have been laid before the legislature. Each of these grounds is the kind that has, in earlier seasons, produced a writ petition.Whether one is filed here is a separate question. So is the question of what a court would do with it. Courts in India do not strike down spent ordinances. Krishna Kumar Singh, on the same question, took 19 years from filing to verdict. The CJI has publicly welcomed the present increase. The argument that the recital fails the Wadhwa standard is, in the immediate sense, academic.It is worth registering nonetheless. The purpose of stating it is not to obtain a judicial verdict. It is to place on the public record that the constitutional warrant for this ordinance has not been supplied. Each promulgation that goes uncontested lowers the threshold for the next. The current ordinance is innocuous in substance; the next, on another subject, may not be. The discipline of Article 123 has, over decades, atrophied through acquiescence. Judges have not looked behind the recital. Parliament’s role in laying ordinances has shrunk to a ratification ritual. The bar picks its battles. The Wire’s own back catalogue, from 2015 through to the 76-ordinance tally of 2021, is a chronicle of how the slope steepens.There is also the underlying merit, which the welcome of the CJI does not settle. The Supreme Court has, over the years, become a court of every cause rather than a constitutional court. That structural problem is not solved by adding to the bench. It is deepened.