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Article 128 of the Indian Constitution: Attendance of retired Judges at sittings of the Supreme Court

Part: V
Shorthand Notes: Retired SC/HC judge can attend SC sittings on CJI's request with President's consent.

Article 128 of the Indian Constitution provides a mechanism to temporarily augment the strength of the Supreme Court by allowing retired judges to sit and act as judges of the Court. This provision serves as a practical solution to address situations like a shortage of judges, heavy pendency of cases, or the need for specific expertise, without resorting to permanent appointments.

It is an enabling provision that vests the power in the Chief Justice of India, subject to crucial conditions, to draw upon the experience of former judges of the Supreme Court or High Courts.

Original Text

128. Attendance of retired Judges at sittings of the Supreme Court.

Notwithstanding anything in this Chapter, the Chief Justice of India may, at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges, but shall not otherwise be deemed to be, a Judge of that Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

Detailed Explanation

Article 128 lays down the conditions and procedure for a retired judge to sit and act as a judge of the Supreme Court.

  1. Authority to Request: The power to make such a request vests solely with the Chief Justice of India (CJI).
  2. Requirement of Consent: This power is not unfettered. The CJI must obtain the “previous consent” of the President of India before making such a request. The President here acts on the aid and advice of the Council of Ministers.
  3. Persons Who Can Be Requested: The request can be made to:
    • Any person who has held the office of a Judge of the Supreme Court.
    • Any person who has held the office of a Judge of the Federal Court (relevant during the transitional period after the Constitution came into force).
    • Any person who has held the office of a Judge of a High Court and is “duly qualified for appointment as a Judge of the Supreme Court”. This means a retired High Court judge can only be requested if they meet the eligibility criteria for appointment as a Supreme Court Judge (as per Article 124(3)).
  4. Nature of Sitting and Acting: Such a person is requested “to sit and act as a Judge of the Supreme Court”. This implies they perform judicial functions like hearing cases, writing judgments, etc.
  5. Entitlements: While sitting and acting, the person requested is entitled to “such allowances as the President may by order determine”. They are not entitled to the salary or pension of a sitting Supreme Court judge.
  6. Powers and Privileges: While sitting and acting, they “have all the jurisdiction, powers and privileges” of a Judge of the Supreme Court. This is crucial as it ensures their participation is meaningful and their decisions carry the same weight.
  7. Status: Importantly, the article explicitly states that such a person “shall not otherwise be deemed to be, a Judge of that Court”. This means they do not become a permanent or de jure judge of the Supreme Court. Their status is temporary, for the specific purpose of sitting and acting as requested.
  8. Consent of the Requested Judge: The Proviso to Article 128 adds another layer of consent. It states that nothing in the article requires any such person to sit and act unless they “consents so to do”. This makes it clear that accepting such a request is voluntary for the retired judge.

This provision acknowledges the valuable experience held by retired judges and provides a constitutional mechanism to utilise it for the functioning of the highest court, particularly when faced with operational challenges.

Detailed Notes

  • Article 128 deals with the attendance and participation of retired judges in sittings of the Supreme Court.
  • The power to request a retired judge rests with the Chief Justice of India (CJI).
  • The CJI must obtain the previous consent of the President of India before making such a request.
  • The request can be made to:
    • Retired Supreme Court Judges.
    • Retired Federal Court Judges (historically relevant).
    • Retired High Court Judges who are qualified for appointment as a Supreme Court Judge (meeting criteria under Article 124(3)).
  • The purpose is for the requested person “to sit and act as a Judge of the Supreme Court”.
  • While sitting and acting, they are entitled to allowances determined by the President.
  • They possess all the jurisdiction, powers, and privileges of a Supreme Court Judge during their tenure.
  • However, they are not deemed to be a permanent or de jure Judge of the Supreme Court. Their status is temporary for the purpose of sitting and acting as requested.
  • The Proviso mandates that the requested person must consent to sit and act as a judge. It is not a mandatory obligation.
  • This mechanism helps the Supreme Court manage workload, address judge shortages, or utilize specific expertise.
  • It is distinct from the process of appointing Supreme Court Judges under Article 124.

Additional Comments

  • This provision is rarely invoked in practice. The primary method to handle workload is through the appointment of regular judges.
  • The eligibility criterion for a retired High Court judge (qualification for appointment as SC Judge) is crucial. This typically involves having been a judge of a High Court for at least five years or an advocate of a High Court for at least ten years (and, historically, being a distinguished jurist).
  • The allowance provided is determined by the President and is not equivalent to the salary of a sitting judge.
  • The temporary nature of the role means they do not hold office for the standard tenure of a Supreme Court judge.
  • The explicit mention that they are “not otherwise be deemed to be, a Judge of that Court” underscores their distinct status compared to regularly appointed judges.

Summary

Article 128 empowers the Chief Justice of India, with the prior consent of the President, to request retired Supreme Court or eligible retired High Court judges to sit and function temporarily as judges of the Supreme Court. Such judges receive allowances determined by the President and hold the same jurisdiction, powers, and privileges as sitting judges while they are acting in this capacity. However, they are not considered de jure judges of the Court. The provision also requires the consent of the retired judge before they are obliged to sit and act. This article provides a constitutional mechanism to address temporary needs of the Supreme Court by leveraging the experience of retired judges.
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