Part V: The Union

The Union Judiciary

Article 127: Appointment of ad hoc Judges

--- Original Article ---

(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 National Judicial Appointments Commission on a reference made to it by 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, for such period as may be necessary, of a Judge of a High Court 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 who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, 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.

Amendment Section

1. Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 4, for "the Chief Justice of India may, with the previous consent of the President" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.

Explanations

Article 127 of the Constitution of India is a vital provision that ensures the continued functioning of the Supreme Court even in circumstances where there may be a temporary shortage of Judges. It enables the Chief Justice of India, in consultation with the President and the relevant High Court, to designate qualified High Court Judges to temporarily serve as ad hoc Judges in the Supreme Court. This article reflects the importance of maintaining judicial efficiency and preventing delays in the administration of justice.

Clause-by-Clause Explanation

1. Process of Appointment of Ad hoc Judges (Clause 1)

When there is a lack of quorum in the Supreme Court, the Chief Justice of India, after consulting the Chief Justice of the concerned High Court and obtaining the President's consent, can appoint a High Court Judge as an ad hoc Judge. This Judge must be qualified to serve on the Supreme Court and is appointed for a specific period as required to meet the quorum.

2. Obligations and Authority of Ad hoc Judges (Clause 2)

An ad hoc Judge, once appointed, is obligated to prioritize the duties of the Supreme Court over their High Court responsibilities. While serving in this capacity, the Judge holds all the powers and privileges of a Supreme Court Judge, allowing them to fully contribute to the Court's proceedings.

Real-Life Examples

• In the 1970s, during a phase of judicial vacancies, ad hoc Judges were appointed to address the backlog of cases in the Supreme Court. This ensured that justice delivery was not delayed due to a temporary shortage of Judges.
• The appointment of ad hoc Judges has also been utilized during instances of heavy case backlogs, allowing the Supreme Court to maintain its efficiency and avoid delays in crucial rulings.

Historical Significance

The use of ad hoc Judges under Article 127 ensures that the Supreme Court can continue to function smoothly, even in situations where there is a temporary shortage of Judges. This provision reflects the foresight of the framers of the Constitution in addressing potential shortfalls in judicial capacity. The rejection of the National Judicial Appointments Commission (NJAC) in 2015 further emphasized the importance of judicial independence in the appointment process for ad hoc Judges.

Judicial Interpretation and Precedents

The Supreme Court has reaffirmed the importance of judicial independence in appointing ad hoc Judges. In the case of Supreme Court Advocates-on-Record Association and another vs. Union of India (2015), the Court struck down the Ninety-ninth Amendment, which sought to vest the NJAC with the power to appoint ad hoc Judges, restoring the original framework under Article 127.

Legislative History

Article 127 of the Indian Constitution, originally formulated as Article 106 of the Draft Constitution, was incorporated into the Constitution on May 27, 1949. The provision was designed to ensure the efficient functioning of the Supreme Court by allowing for temporary appointments when necessary.

Debates and Amendments

During the drafting of this article, several key amendments were proposed to ensure clarity and avoid potential political bias in the appointment process.

One significant amendment was proposed by Mr. Tajamul Husain, who sought to add the words "duly qualified for appointment as a judge of the Supreme Court" after the words "High Court" in Clause (1). The purpose of this amendment was to emphasize that any High Court judge appointed as an ad hoc Judge in the Supreme Court must have the same qualifications required of a regular Supreme Court judge. This addition was intended to preserve the integrity and competency of appointments. The amendment was accepted, and the article was modified accordingly.

Shri T. T. Krishnamachari proposed another crucial amendment. He suggested inserting the words "with the previous consent of the President" in Clause (1), thereby requiring the Chief Justice of India to seek the President's approval before appointing an ad hoc Judge. Krishnamachari argued that this addition would safeguard the judiciary from potential political biases, as the appointment process would now involve consultation with the executive. His reference to the United States judiciary and the impact of political appointments on their constitutional rulings underscored the importance of this safeguard in India's system. This amendment was also accepted.

Dr. B. R. Ambedkar supported both amendments, recognizing their role in balancing the powers of the judiciary and the executive, while ensuring that only qualified and capable judges were appointed as ad hoc Judges. The inclusion of these amendments reinforced the principle of judicial independence and the need for careful scrutiny in appointments to the highest court in the land.

Following these discussions and the inclusion of the amendments, Article 127 was adopted as part of the Constitution on May 27, 1949.

References

• Constitution of India, Article 127 – Provides the legal framework for the appointment of ad hoc Judges in the Supreme Court.
• Constitution (Ninety-ninth Amendment) Act, 2014 – Introduced the National Judicial Appointments Commission (NJAC), modifying the appointment process for ad hoc Judges.
• Supreme Court Advocates-on-Record Association and another vs. Union of India, AIR 2016 SC 117 – The Supreme Court struck down the NJAC, restoring the original appointment process under Article 127.