Constitution of India
Article 127: Appointment of ad hoc Judges
Part V — The Union (Chapter IV — The Union Judiciary)
Clause (1)
WHAT IT SAYS: If quorum of SC Judges is unavailable, the CJI may — with President's prior consent and after consulting the HC Chief Justice concerned — request in writing a qualified HC Judge to sit as an ad hoc Judge of the Supreme Court. WHAT IT MEANS: It provides a temporary mechanism to ensure the Supreme Court can function even when permanent judges are insufficient to form a quorum. KEY DOCTRINE: Doctrine of Judicial Independence — the CJI retains primacy in designating the ad hoc judge, while Executive (President) consent acts as a check.
Clause (2)
WHAT IT SAYS: The designated Judge must prioritise Supreme Court sittings over all other duties, and while attending, shall have all jurisdiction, powers, privileges, and duties of a regular SC Judge. WHAT IT MEANS: The ad hoc Judge is not a second-class judge — they exercise full SC authority for the duration of their service. KEY DOCTRINE: Doctrine of Parity of Judicial Power — an ad hoc judge's orders carry the same legal force as those of a permanent SC Judge.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Federal Court provisions (Sections 200–204) Original provision: The 1935 Act established the Federal Court with a fixed number of judges but did not include an ad hoc appointment mechanism. What India kept: The structural framework of a unified apex court drawing judges from High Courts; added the innovative ad hoc mechanism to address quorum gaps. 2. Original Indian Contribution — No exact foreign parallel exists for this provision. INDIA'S SPECIFIC ADAPTATIONS: 1. Added quorum-based trigger — Framers anticipated scenarios where vacancies, illness or recusals could paralyze the apex court. 2. Required President's previous consent — To ensure Executive-Judiciary coordination, unlike the 1935 Act where the Crown unilaterally appointed all judges. 3. Mandated consultation with HC Chief Justice — To protect federalism and ensure the lending HC is not crippled by losing a sitting judge without input.
Constituent Assembly Debate
DEBATED ON: 27 May 1949 (CAD Volume VIII) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Accepted proposed amendments and commended them to the Assembly. 2. Member (name not individually recorded in available CAD summary) — Proposed that HC judges must meet qualification criteria under Draft Article 103 (now Art. 124) to be eligible as ad hoc judges. 3. Another Member — Proposed requiring President's prior consent before the CJI requests an ad hoc judge, arguing executive input was necessary since the President ordinarily appoints judges. MAJOR DISAGREEMENTS: 1. Qualification safeguard — Original draft did not require ad hoc judges to meet SC appointment qualifications; the amendment added this requirement. 2. Executive involvement — Original draft allowed the CJI alone to act; amendment introduced the requirement of President's prior consent. FINAL OUTCOME: Both amendments were positively received by Ambedkar and accepted by the Assembly without further debate; the amended Draft Article 106 was adopted on 27 May 1949. AMBEDKAR'S KEY QUOTE (if available): No individually attributed direct quote on this article is preserved in available CAD records; he endorsed the amendments without a recorded speech.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Supreme Court Advocates-on-Record Association v. Union of India (2015) — The SC struck down the 99th Amendment Act (2014) which had substituted 'CJI' with 'NJAC' in Art. 127(1); the original text was restored, preserving CJI's primacy in ad hoc appointments. 2. S.P. Gupta v. Union of India (1981) [First Judges Case] — Held that 'consultation' in judicial appointment articles does not mean 'concurrence'; executive retains final say — indirectly relevant to the consultation requirement in Art. 127. 3. Supreme Court Advocates-on-Record Association v. Union of India (1993) [Second Judges Case] — Overruled First Judges Case; held 'consultation' means 'concurrence', thereby strengthening the CJI's role in all appointment provisions including Art. 127. 4. Union of India v. Sankalchand Himatlal Sheth (1977) — Addressed judicial independence in the context of judge transfers; principles of meaningful consultation with the CJI apply equally to Art. 127. NOTABLE DISSENTS: 1. Justice Chelameswar in NJAC Case (2015) — Dissented from the majority, arguing the NJAC mechanism (which would have changed Art. 127) was not violative of the basic structure and would have improved transparency. SCOLARS & JURISTS: 1. D.D. Basu — Described Art. 127 as a practical safeguard ensuring continuity of the apex court's functioning during unforeseen judicial shortages. 2. Dr. K. Sivananda Kumar (SSRN, 2019) — Analyzed Art. 127 as a rarely invoked but constitutionally vital provision that underscores cooperation between judiciary and executive.