Part V: The Union

The Union Judiciary

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

--- Original Article ---

Notwithstanding anything in this Chapter, the National Judicial Appointments Commission 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 of, 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.

Amendment Section

1. Subs. by s. 5, ibid., for "the Chief Justice of India" (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.

2. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, s.3 (w.e.f. 5-10-1963).

Explanations

Article 128 of the Indian Constitution highlights the flexibility of the judicial system in accommodating retired judges during the sittings of the Supreme Court. It allows for the participation of retired judges, thus reinforcing the capacity of the judiciary to handle complex cases and large dockets. This provision underlines the critical role that experienced judges continue to play in the administration of justice even after their retirement.

Clause-by-Clause Explanation

1. Requesting Retired Judges to Act as Supreme Court Judges

Article 128 empowers the National Judicial Appointments Commission (NJAC) (replaced temporarily from the Chief Justice of India) to seek the services of a retired judge, provided they have previously served as a judge in the Supreme Court, Federal Court, or a qualified High Court. The NJAC can only do this with the prior consent of the President of India.

2. Allowances and Powers

The retired judge acting under this provision is entitled to specific allowances as determined by the President. They also possess all the powers and privileges of a regular judge of the Supreme Court during their temporary service, although they are not considered a permanent member of the bench.

3. Voluntary Service

The retired judge’s participation is voluntary. They are not bound to serve unless they provide explicit consent to the request.

Real-Life Examples

• In various cases, retired judges such as Justice K.S. Paripoornan were invited to assist the Supreme Court during periods of high workload. These invitations ensure that important cases are not delayed due to a shortage of judges.
• In 2008, retired Chief Justice of India Y.K. Sabharwal was requested to preside over some important cases after his retirement due to the increasing workload in the Supreme Court.

Historical Significance

The historical significance of Article 128 lies in its pragmatic approach to addressing judicial efficiency. In post-independence India, this provision ensured that retired judges could still contribute to the judiciary when needed. It reflects the Indian Constitution’s emphasis on balancing continuity and fresh perspectives within the judiciary.

Legislative History

Article 128 of the Indian Constitution, primarily defined and debated as article 107 of the Draft Constitution, was ultimately incorporated into the Indian Constitution on May 27, 1949.

Debates and Amendments

On May 27, 1949, the Honourable Dr. B. R. Ambedkar moved to delete the words "subject to the provisions of this article" from Article 107, arguing that they were unnecessary. This amendment was adopted without objection.

Subsequently, Shri T. T. Krishnamachari proposed inserting the words "with the previous consent of the President" after "at any time" in line 3 of Article 107. He explained that this amendment was intended to ensure that the Chief Justice obtained the President's prior consent before inviting retired judges to participate in Supreme Court sittings, aligning with an earlier accepted amendment. This proposal was also adopted.

After these amendments were approved, the article, incorporating the changes, was then formally added to the Constitution.

References

• Constitution of India, Article 128 – Provides the legal framework for the attendance of retired judges in the Supreme Court.
• Supreme Court Advocates-on-Record Association and Another v. Union of India, AIR 2016 SC 117.
• The Constitution (Fifteenth Amendment) Act, 1963.