Article 127

Article 127 of the Constitution of India provides for the appointment of ad hoc judges in the Supreme Court to ensure its effective functioning during periods when there is a shortage of judges or a lack of quorum. This provision reflects the foresight of the Constitution’s framers in safeguarding the continuity and efficiency of the highest judicial body, even in extraordinary circumstances.
By allowing temporary appointments from among qualified High Court judges, Article 127 ensures that the delivery of justice is not delayed due to vacancies, illness, or temporary absences among the sitting judges of the Supreme Court.

Constitutional Provision

Article 127 of the Constitution states:

(1) If at any time there is not a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, 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 a Judge of that High Court duly qualified for appointment as a Judge of the Supreme Court to attend, for such period as may be necessary, the sittings of the Supreme Court as an ad hoc Judge, and every such Judge so attending shall, while so attending, have all the jurisdiction, powers, and privileges, and shall discharge the duties of a Judge of the Supreme Court.

(2) It shall be the duty of the Judge who has been so requested to attend the sittings of the Supreme Court to attend the sittings of the Court accordingly, giving such priority to his duties as a Judge of the Supreme Court as the Chief Justice of India may require.

This provision provides the constitutional mechanism for ensuring that the Supreme Court remains fully functional even in times of temporary shortage of judges.

Conditions and Procedure for Appointment

The procedure for appointing an ad hoc judge under Article 127 involves a series of constitutional and administrative steps, ensuring coordination between the judiciary and the executive:

1. Existence of a Shortage or Lack of Quorum:
   • The provision is invoked only when the Supreme Court is unable to hold or continue a session due to an insufficient number of judges.
2. Initiation by the Chief Justice of India (CJI):
   • The process begins when the CJI identifies the shortage and requests the appointment of a judge from a High Court to act as an ad hoc judge in the Supreme Court.
3. Consultation and Consent:
   • Before making such a request, the CJI must obtain:
     • The prior consent of the President of India, and
     • The concurrence of the Chief Justice of the High Court from which the judge is being requested.
4. Eligibility Criteria:
   • The High Court judge must possess the qualifications for appointment as a Supreme Court judge under Article 124(3), namely:
     • Citizenship of India; and
     • At least five years’ service as a High Court judge, or ten years’ experience as a High Court advocate, or recognition as a distinguished jurist.
5. Duration and Powers:
   • The ad hoc judge serves only for the period specified by the CJI, and during this tenure, he or she exercises all powers, duties, and privileges of a regular Supreme Court judge.
6. Obligation to Serve:
   • Once requested, it is the duty of the High Court judge to attend the sittings of the Supreme Court, giving priority to Supreme Court duties as directed by the CJI.

This collaborative process ensures a balance between executive sanction and judicial initiative, maintaining institutional checks and accountability.

Nature and Role of Ad Hoc Judges

An ad hoc judge is a temporary appointee who assists the Supreme Court in situations where:

• There is a shortage of judges,
• Pending cases have accumulated, or
• Quorum requirements are not met due to illness, leave, or vacancies.

While serving as an ad hoc judge:

• They enjoy equal status, powers, and jurisdiction as permanent judges of the Supreme Court.
• Their judgments and decisions carry the same legal authority.
• They are entitled to the same privileges and immunities as regular Supreme Court judges.

This provision reflects the principle of functional continuity — ensuring that the Supreme Court’s judicial work never comes to a halt.

Significance of Article 127

Article 127 holds immense constitutional and practical importance for several reasons:

1. Ensures Continuity in Judicial Administration:
   • It guarantees that the Supreme Court can continue its operations without interruption, even in times of vacancies or emergencies.
2. Addresses Case Backlogs:
   • By supplementing the regular bench with experienced High Court judges, the provision helps tackle the long-standing issue of pendency of cases in the apex court.
3. Upholds Judicial Efficiency:
   • The availability of ad hoc judges ensures that quorum requirements are always met and that no case is delayed for want of sufficient judges.
4. Promotes Inter-Judicial Collaboration:
   • It strengthens the relationship between the Supreme Court and the High Courts, creating a unified and cooperative judicial framework.
5. Demonstrates Constitutional Flexibility:
   • The article reflects the adaptability of the Indian judiciary to deal with unforeseen circumstances and institutional challenges.

Related Constitutional Provisions

Article 127 must be read in conjunction with other articles regulating the structure and functioning of the Supreme Court:

• Article 124: Establishes the Supreme Court and defines its composition and appointment of judges.
• Article 126: Provides for the appointment of an Acting Chief Justice.
• Article 128: Allows retired judges of the Supreme Court or High Courts to sit and act as judges of the Supreme Court.

Together, these provisions ensure that the Court remains operational and effective, even during temporary disruptions or shortages.

Judicial Observations and Interpretations

Though Article 127 has rarely been invoked in practice, the judiciary has acknowledged its importance in maintaining the functional capacity of the Supreme Court:

• Supreme Court Advocates-on-Record Association v. Union of India (2016):The Court observed that judicial efficiency depends on maintaining adequate strength in the higher judiciary and emphasised the need to address vacancies promptly.
• In re: Appointment of Judges to the Supreme Court (2019):The Court reiterated that maintaining a full bench is essential for effective adjudication and speedy justice, recognising the utility of provisions such as Article 127 and Article 128 in exceptional circumstances.

While direct case law on Article 127 is limited, the judiciary has consistently upheld the spirit of the provision as a constitutional safeguard for continuity and efficiency.

Administrative Practice and Usage

In practice, Article 127 has been sparingly used in India’s constitutional history. The limited invocation of this provision reflects that:

• The Supreme Court has generally maintained an adequate number of judges to meet its quorum.
• The regular appointment process under Article 124 has been sufficient to address judicial vacancies.

However, with the increasing case backlog and judicial workload, there have been renewed discussions on the practical utility of appointing ad hoc judges more frequently to enhance judicial capacity.

Comparison with Article 128

Article 127 differs from Article 128, which allows the Chief Justice of India to request retired judges of the Supreme Court or High Courts to sit and act as judges of the Supreme Court.

Both provisions serve the common purpose of maintaining judicial efficiency but differ in their sources of appointment and functional contexts.

Contemporary Relevance and Challenges

While Article 127 provides an effective constitutional solution to temporary judicial shortages, its underutilisation has drawn attention in modern times due to:

• Rising pendency of cases, and
• Delays in regular judicial appointments.

Legal experts and commissions, including the Law Commission of India, have recommended activating Article 127 as a practical measure to mitigate backlog without compromising judicial independence.
However, concerns have also been raised regarding:

• Potential executive influence in the appointment process, and
• The need for a transparent and structured mechanism to operationalise such appointments effectively.

Significance in the Constitutional Scheme

Article 127 embodies the constitutional philosophy that justice should never be delayed for administrative reasons. It ensures that the Supreme Court remains functional, independent, and effective even in times of transition or shortage.
The provision strengthens:

• Continuity in judicial functioning,
• Administrative stability, and
• Public confidence in the judiciary’s ability to deliver timely justice.

Conclusion

Article 127 of the Indian Constitution is a vital but rarely invoked safeguard ensuring the uninterrupted functioning of the Supreme Court during periods of judicial shortage or quorum deficiency. By empowering the Chief Justice of India, in consultation with the President and the concerned High Court Chief Justice, to appoint qualified High Court judges as ad hoc judges, the article preserves the Supreme Court’s ability to dispense justice efficiently.