Constitution of India
Article 128: Attendance of retired Judges at sittings of the Supreme Court
Part V — The Union (Chapter IV — The Union Judiciary)
Article 128 (no sub-divisions — single article with a proviso)
WHAT IT SAYS: 1. The CJI, with previous consent of the President, may request any retired judge of the Supreme Court, Federal Court, or a High Court (if duly qualified for SC appointment) to sit and act as a Judge of the Supreme Court. 2. Such person, while sitting and acting, is entitled to allowances as the President determines. 3. Such person has all jurisdiction, powers, and privileges of a SC Judge, but is NOT otherwise deemed to be a Judge of the Court. 4. PROVISO: No such person is required to sit and act unless he/she consents. WHAT IT MEANS: 1. This is a temporary recall mechanism — NOT a fresh appointment. 2. Three consents are required: (a) CJI initiates, (b) President gives prior consent, (c) Retired judge personally consents. 3. The retired judge exercises full judicial power while sitting but does not count towards the permanent strength of the Court. 4. Allowances (not salary) are paid — determined by Presidential order. KEY DOCTRINE: 1. Doctrine of Judicial Continuity — ensures SC can function at optimal strength without permanent appointments. 2. Distinguished from Article 127 (ad hoc judges for quorum shortage) — Article 128 addresses workload/expertise needs, not quorum.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 213 (Federal Court provisions) Original provision: The Governor-General could request retired Federal Court judges to sit and act temporarily. What India kept: The concept of recalling retired judges to serve temporarily on the apex court. 2. United Kingdom — Practice under Appellate Jurisdiction Act, 1876 & 1947 Original provision: Retired Lords of Appeal could be invited to sit in the House of Lords. What India kept: The principle that retired senior judges may be recalled for temporary judicial duty. INDIA'S SPECIFIC ADAPTATIONS: 1. Triple-consent mechanism (CJI + President + retired judge) — To prevent executive unilateralism and protect judicial independence. 2. Inclusion of High Court judges (added by 15th Amendment, 1963) — To widen the pool of available judicial talent beyond just retired SC/Federal Court judges. 3. Allowances determined by President, not salary — To ensure retired judges are not treated as regular appointees and to maintain fiscal prudence. 4. Non-compulsory nature (proviso) — Unlike some colonial provisions, a retired judge cannot be compelled to serve, reflecting respect for individual autonomy.
Constituent Assembly Debate
DEBATED ON: 27 May 1949 (CAD Volume VIII) Draft Article Number: 107 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Bombay, Chairman of Drafting Committee) — Supported the provision as a safeguard against losing judicial talent post-retirement; stated it reduces the risk of the Court losing competent judges who retire at 65. 2. A member (name not recorded in available summaries) — Proposed that the CJI should obtain the previous consent of the President before requesting a retired judge, adding executive oversight. 3. Dr. Ambedkar responded positively to the amendment requiring Presidential consent. MAJOR DISAGREEMENTS: 1. Whether Presidential consent should be required — One member argued the CJI alone should not have unilateral power to recall retired judges; proposed adding 'previous consent of the President' as a check. 2. No other major disagreements recorded — the article was adopted with minimal debate. FINAL OUTCOME: The amendment adding 'previous consent of the President' was accepted without debate; Draft Article 107 was adopted as amended. AMBEDKAR'S KEY QUOTE: "We have provided that it should be open to the chief justice to call retired judges to sit and decide a particular case or cases… there is less possibility of our losing the talent of individual people who have already served on the Supreme Court."
Landmark Judgments
AMENDMENT HISTORY: 1. Constitution (15th Amendment) Act, 1963, Section 3 — Inserted words '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' after 'Federal Court', expanding the pool of eligible retired judges. 2. Constitution (99th Amendment) Act, 2014, Section 5 — Substituted 'the Chief Justice of India' with 'the National Judicial Appointments Commission' — BUT this amendment was struck down as unconstitutional in 2015; original text with 'Chief Justice of India' stands restored. LANDMARK JUDGMENTS: 1. Supreme Court Advocates-on-Record Association v. Union of India (2015) [Fourth Judges Case] — 4:1 majority struck down the 99th Amendment and NJAC Act as unconstitutional; amendments to Article 128 replacing CJI with NJAC were undone; collegium system restored. 2. Supreme Court Advocates-on-Record Association v. Union of India (1993) [Second Judges Case] — Discussed the constitutional importance of adequate judicial strength; acknowledged Article 128 as a mechanism to supplement the bench with retired judges. 3. In re: Appointment of Judges to the Supreme Court (2019) — Observed that recalling retired judges under Article 128 could help address pendency and ensure judicial efficiency. NOTABLE DISSENTS: 1. Justice J. Chelameswar in SCAORA v. UOI (2015) — Sole dissenter; upheld validity of 99th Amendment and NJAC, arguing it did not violate basic structure. SCHOLARS & JURISTS: 1. Arvind Datar (Senior Advocate) — Argued that Article 128 is a 'neglected provision' and should be actively invoked to address the mounting backlog of cases in the Supreme Court. 2. Law Commission of India (Report No. 245, 2014) — Recommended active use of retired judges under Article 128 to augment the strength of the Supreme Court and High Courts. 3. National Commission to Review the Working of the Constitution (NCRWC, 2002) — Recommended reforms to ensure timely appointment of judges and use of retired judges to address case backlogs.