Article 126

Article 126 of the Constitution of India provides for the appointment of an Acting Chief Justice of the Supreme Court when the office of the Chief Justice of India (CJI) is vacant or when the CJI is temporarily unable to perform the duties of the office. This provision ensures the continuity, stability, and efficient functioning of the highest judicial body in the country, preventing any administrative or judicial vacuum in the Supreme Court’s leadership.

Constitutional Provision

Article 126 states:

“When the office of Chief Justice of India is vacant or when the Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.”

This article, therefore, authorises the President of India to appoint an Acting Chief Justice from among the existing judges of the Supreme Court whenever necessary.

Situations Requiring Appointment

Article 126 applies in two distinct circumstances:

1. Vacancy in the Office of the Chief Justice of India:
   • This may occur upon the retirement, resignation, removal, or death of the sitting Chief Justice.
   • Until a new Chief Justice is appointed, the President designates one of the senior-most judges as the Acting Chief Justice to ensure uninterrupted functioning.
2. Temporary Absence or Incapacity of the Chief Justice:
   • The Chief Justice may be temporarily unable to perform duties due to illness, official absence, or other reasons.
   • During such periods, the President appoints an Acting Chief Justice to carry out judicial and administrative responsibilities.

This mechanism maintains continuity in judicial administration and ensures that essential judicial and constitutional functions are not disrupted.

Role and Powers of the Acting Chief Justice

The Acting Chief Justice, once appointed, enjoys the same powers, functions, and authority as the Chief Justice of India during the period of appointment. These include:

• Presiding over benches of the Supreme Court, including Constitution Benches.
• Administrative supervision over court functioning and allocation of cases.
• Advisory and administrative roles, including recommending judicial appointments under Article 124(2).
• Representing the judiciary in constitutional or ceremonial functions.

However, the appointment is temporary in nature and continues only until the substantive Chief Justice resumes office or a new Chief Justice is appointed.

Significance of Article 126

Article 126 serves a critical constitutional purpose by ensuring:

• Continuity of Justice: Judicial work at the Supreme Court proceeds without interruption even in the absence of the Chief Justice.
• Administrative Stability: The Court’s administrative and procedural hierarchy remains intact.
• Preservation of Judicial Authority: It prevents a constitutional vacuum in the highest judicial office.
• Flexibility in Governance: The President can swiftly address transitional or unforeseen circumstances in judicial leadership.

Thus, the article reflects the framers’ foresight in maintaining the efficiency and independence of the judiciary under all conditions.

Historical Context and Practice

Since Independence, several Acting Chief Justices of India have been appointed during transitional periods between the tenures of permanent Chief Justices. Such appointments are generally made in accordance with seniority among the sitting judges of the Supreme Court, thereby maintaining institutional continuity and avoiding controversy.
Notable historical instances include:

• Short intervals between the retirement of one Chief Justice and the appointment of the next.
• Situations where the CJI was temporarily indisposed or travelling abroad on official duty.

In each case, the appointment ensured that no delay occurred in the functioning of the Supreme Court or in the discharge of its constitutional responsibilities.

Role of the President

Under Article 126, the President of India holds the exclusive constitutional authority to appoint the Acting Chief Justice. The appointment is made:

• Based on established convention, typically following the principle of seniority among Supreme Court judges.
• After due consultation with the judiciary, where appropriate.

Although the President exercises discretion, it is guided by constitutional convention and judicial precedent, ensuring that the process remains impartial and non-political.
This reinforces the constitutional balance between the executive and judiciary, preventing undue influence in judicial affairs while allowing necessary administrative coordination.

Related Constitutional Provisions

Article 126 is part of the broader constitutional framework governing the structure and functioning of the Supreme Court:

• Article 124: Establishes the Supreme Court and prescribes qualifications, appointments, and tenure of judges.
• Article 125: Relates to the salaries, privileges, and allowances of judges.
• Article 127: Provides for the appointment of ad hoc judges when the Court faces a shortage of judges or an excessive workload.
• Article 128: Allows retired judges to sit and act as judges of the Supreme Court in certain circumstances.

Together, these provisions ensure the continuity, efficiency, and integrity of the judicial system at the highest level.

Judicial Interpretation and Case Laws

Over the years, the Supreme Court has interpreted Article 126 in the context of judicial independence and administrative continuity:

• State of Uttar Pradesh v. Raj Narain (1975):The Court highlighted the pivotal role of the Chief Justice in maintaining judicial discipline and authority, underscoring the necessity of appointing an Acting Chief Justice when the position falls vacant.
• Supreme Court Advocates-on-Record Association v. Union of India (2016):The Court discussed the constitutional importance of the Chief Justice’s office and the mechanisms, such as Article 126, designed to preserve judicial stability during periods of vacancy or incapacity.

Judicial opinions have consistently upheld the validity and necessity of Article 126 as a constitutional safeguard ensuring the seamless operation of the Supreme Court.

Criticism and Debates

While Article 126 has functioned effectively, some constitutional commentators and legal scholars have raised concerns regarding:

• Scope for Executive Discretion: Although guided by convention, the President’s appointment power could theoretically allow political influence in selecting an Acting Chief Justice.
• Lack of Procedural Transparency: The Constitution does not specify the criteria or consultation mechanism for such appointments.

However, in practice, appointments under Article 126 have adhered strictly to judicial seniority, thereby maintaining confidence in the system. Suggestions for reform include codifying conventions and introducing greater procedural clarity to further safeguard judicial independence.

Contemporary Practice

In modern practice, the appointment of an Acting Chief Justice is typically:

• Based on seniority among sitting judges, following well-established norms.
• Limited to short durations, usually between the retirement of one Chief Justice and the swearing-in of the next.
• Administered with due regard to constitutional propriety, ensuring no disruption in judicial or administrative work.

These conventions have maintained stability and predictability in the judicial system, upholding public trust in the Supreme Court’s leadership.

Significance for Judicial Independence

Article 126 plays a vital role in reinforcing judicial independence, a cornerstone of the Indian Constitution. By ensuring that the office of the Chief Justice never remains functionally vacant, it:

• Prevents executive encroachment during periods of transition.
• Upholds the continuity of judicial oversight and administration.
• Preserves the institutional integrity and credibility of the Supreme Court.

The framers of the Constitution thus ensured that the judiciary remains self-sustaining and resilient, even in the face of temporary vacancies or incapacities.

Conclusion

Article 126 of the Indian Constitution is a crucial provision designed to maintain the continuity and stability of the Supreme Court during transitional or unforeseen circumstances affecting the Chief Justice of India. By empowering the President to appoint an Acting Chief Justice, the article safeguards the uninterrupted functioning of the judiciary and preserves the authority of the nation’s highest court.