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Article 127 of the Indian Constitution: Appointment of ad hoc Judges

Part: V
Shorthand Notes: Ad hoc Judges SC, CJI appointment, President consent, Quorum issue, Qualified HC Judge, Temporary

Article 127 of the Indian Constitution addresses a specific situation where the Supreme Court might face a temporary shortage of judges, potentially hindering its ability to function efficiently. It lays down the mechanism for appointing ad hoc judges to ensure that the Court’s work, especially concerning maintaining a necessary quorum for sessions, is not interrupted.

This provision is crucial for the uninterrupted administration of justice by the apex court, providing a temporary solution to meet exigencies arising from a lack of sufficient judges available at a given time to constitute a bench or benches.

Original Text

127. Appointment of ad hoc Judges.

(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, of a Judge of a High Court who is duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

(2) It shall be the duty of the Judge whose attendance has been so requested to attend the sittings of the Supreme Court at such time and for such period as the Chief Justice of India may require, and while so attending, he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

Detailed Explanation

Article 127 empowers the Chief Justice of India (CJI) to appoint ad hoc judges to the Supreme Court under specific circumstances. This provision is invoked when there is an insufficient number of regular Supreme Court judges available to form a quorum required to hold or continue court sessions.

The process involves the CJI initiating the request for the attendance of a High Court judge at the sittings of the Supreme Court. This request is not unilateral; it requires two essential prerequisites:

  1. Previous Consent of the President: The CJI must obtain the prior consent of the President of India. This reflects the constitutional scheme where key judicial appointments involve the executive head.
  2. Consultation with the Chief Justice of the concerned High Court: The CJI must consult with the Chief Justice of the High Court from which the judge is to be drawn. This ensures coordination and takes into account the situation and needs of the concerned High Court.

The judge who can be requested to serve as an ad hoc judge must be a Judge of a High Court who is also qualified to be appointed as a Judge of the Supreme Court. The CJI designates the specific High Court Judge to be appointed ad hoc.

Once requested and appointed as an ad hoc Judge, that judge is under a duty to attend the sittings of the Supreme Court for the specified time or period required by the CJI. While attending the Supreme Court sessions, the ad hoc Judge is vested with the full authority of a regular Supreme Court Judge. This includes having all the jurisdiction, powers, and privileges of a Supreme Court Judge and being obligated to discharge the duties of that office. This ensures that the ad hoc Judge can fully participate in the Court’s proceedings, including hearing and deciding cases, without any limitations compared to permanent judges, for the period they serve as ad hoc judges.

The purpose of this article is not to make permanent appointments but to provide a temporary arrangement to meet a shortfall in the number of judges necessary for the court to function, particularly to maintain the required quorum for benches.

Detailed Notes

  • Purpose: To ensure the Supreme Court can function and maintain quorum when there are not enough regular judges available.
  • Condition for Appointment: Lack of a quorum of Judges of the Supreme Court to hold or continue any session.
  • Authority to Initiate: Chief Justice of India (CJI).
  • Procedure - Consent: Requires the previous consent of the President of India.
  • Procedure - Consultation: Requires consultation with the Chief Justice of the concerned High Court from which the judge is requested.
  • Eligibility: A Judge of a High Court who is duly qualified for appointment as a Judge of the Supreme Court.
  • Designation: The specific Judge is designated by the Chief Justice of India.
  • Nature of Appointment: Ad hoc (temporary) and for a specific period as required by the CJI.
  • Duty of the Ad hoc Judge: The requested judge has a duty to attend the sittings of the Supreme Court.
  • Status while Serving: While attending Supreme Court sittings, the ad hoc Judge has:
    • All the jurisdiction of a Supreme Court Judge.
    • All the powers of a Supreme Court Judge.
    • All the privileges of a Supreme Court Judge.
    • Discharges all the duties of a Supreme Court Judge.

Additional Comments

  • This provision is distinct from Article 128, which deals with the attendance of retired judges at sittings of the Supreme Court. Article 127 concerns serving High Court judges qualified for the Supreme Court, appointed temporarily to meet a quorum deficiency.
  • The use of Article 127 has been historically rare in India. While the Constitution provides this mechanism, it has not been frequently invoked to address pendency or quorum issues.
  • The Supreme Court itself, in recent times (e.g., Lok Prahari v. Union of India, 2021), has provided guidelines and emphasized the need to operationalize this provision to tackle the mounting arrears of cases and ensure specialized benches can be formed. The Court suggested objective criteria and a defined process for implementing Article 127.
  • The primary trigger is a quorum issue for holding or continuing a session, although it can implicitly help in forming multiple benches if there is a general shortage affecting the court’s capacity.
  • The ad hoc judge serves only for the period specified by the CJI and returns to their parent High Court afterwards. They do not become permanent judges of the Supreme Court through this process.

Summary

Article 127 empowers the Chief Justice of India to appoint a qualified High Court Judge as a temporary, ad hoc Judge of the Supreme Court to ensure the Court can maintain its quorum and continue functioning when there is a shortage of regular judges. This appointment requires the prior consent of the President and consultation with the Chief Justice of the concerned High Court. The ad hoc Judge, while serving, exercises all the powers, jurisdiction, and privileges of a regular Supreme Court Judge. This provision serves as a mechanism to address temporary judicial vacancies affecting the functioning of the apex court.
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