Article 128

Article 128 of the Constitution of India empowers the Chief Justice of India (CJI) to request retired judges of the Supreme Court, Federal Court, or High Courts to sit and act as judges of the Supreme Court. This provision serves as a constitutional mechanism to utilise judicial experience during periods of high workload, judicial vacancies, or when specialised expertise is required in complex cases.
By enabling the temporary participation of retired judges, Article 128 ensures the continuity, efficiency, and strength of the judiciary, reinforcing the Supreme Court’s capacity to deliver justice without delays.

Text of Article 128

“Notwithstanding anything in this Chapter, the Chief Justice of India 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 sitting and acting 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 the Supreme Court.”

Constitutional Purpose

The framers of the Constitution incorporated Article 128 to address potential situations of:

• Shortage of judges due to vacancies, illness, or temporary absences.
• Heavy workload and backlog of cases in the Supreme Court.
• The need for experienced judicial assistance in complex constitutional or technical matters.

Thus, Article 128 provides a constitutional solution to augment judicial strength without the need for permanent appointments. It allows the Supreme Court to temporarily recall judicial expertise to ensure the continuity of justice.

Key Provisions and Procedure

The main components of Article 128 are as follows:

1. Authority to Request Retired Judges:
   • The Chief Justice of India has the discretion to invite retired judges to sit in the Supreme Court.
   • This power can be exercised only with the prior consent of the President of India.
2. Eligible Persons:
   • The provision applies to:
     • Retired judges of the Supreme Court,
     • Former judges of the Federal Court (pre-Constitutional era), or
     • Retired judges of any High Court, provided they are qualified for appointment as judges of the Supreme Court under Article 124(3).
3. Consent of the Retired Judge:
   • The retired judge’s personal consent is mandatory before they can be requested to act.
4. Powers and Jurisdiction:
   • While sitting, the retired judge enjoys all the jurisdiction, powers, and privileges of a regular Supreme Court judge.
   • Their judgments and orders carry the same legal authority.
5. Remuneration and Allowances:
   • The President determines the allowances and other terms of engagement for the period of service.
6. Temporary Nature:
   • Retired judges are not deemed permanent judges of the Supreme Court; they serve only for the duration they are requested to act.

This framework ensures flexibility while maintaining the hierarchical integrity of the Supreme Court.

Practical Application and Historical Context

Since the adoption of the Constitution, Article 128 has been sparingly used, but it has played a crucial role during periods of:

• Judicial backlog,
• Vacant judicial positions, or
• The need for specialised judicial expertise.

Retired judges have been recalled to assist in Constitution Bench cases, review matters, and disposal of pending appeals. The practice helps prevent delays and preserves institutional knowledge within the judiciary.

Significance of Article 128

Article 128 serves several important constitutional and practical purposes:

1. Continuity of Judicial Work:
   • Ensures the uninterrupted functioning of the Supreme Court even during vacancies or when additional judicial capacity is required.
2. Utilisation of Experience:
   • Draws on the vast legal knowledge and expertise of retired judges who possess deep understanding of constitutional and legal issues.
3. Reduction of Case Backlog:
   • Helps expedite pending cases and ease the pressure on sitting judges.
4. Strengthening Judicial Efficiency:
   • Acts as a mechanism to maintain optimum judicial strength without the delay of permanent appointments.
5. Institutional Flexibility:
   • Demonstrates the adaptability of the judiciary to meet temporary or exceptional needs without compromising independence or hierarchy.

Thus, Article 128 ensures that justice is neither delayed nor denied due to procedural or administrative constraints.

Related Constitutional Provisions

Article 128 is closely connected to several other articles dealing with the structure and functioning of the Supreme Court:

• Article 124: Establishes the Supreme Court and prescribes qualifications for appointment of judges.
• Article 125: Deals with salaries, privileges, and allowances of judges.
• Article 126: Provides for the appointment of an Acting Chief Justice during temporary vacancies.
• Article 127: Authorises the appointment of ad hoc judges from among High Court judges when there is a lack of quorum in the Supreme Court.

Together, Articles 126–128 ensure that the Supreme Court continues to function effectively under all circumstances.

Judicial Interpretation and Case Law

Although Article 128 has rarely been a subject of direct litigation, the judiciary has recognised its importance through various pronouncements:

• In re: Appointment of Judges (1993) – Second Judges Case:The Court discussed the constitutional importance of having adequate judicial strength and emphasised the possibility of utilising retired judges under Article 128 to supplement the bench.
• Supreme Court Advocates-on-Record Association v. Union of India (2016):The Court reaffirmed that provisions such as Articles 127 and 128 serve as constitutional safeguards for maintaining the effective functioning of the judiciary during times of increased workload.
• In re: Appointment of Judges to the Supreme Court (2019):The Court observed that recalling retired judges could help in addressing pendency and ensuring that judicial efficiency is not compromised.

Through these interpretations, the Supreme Court has acknowledged the strategic and functional value of Article 128 in upholding judicial continuity.

Difference Between Ad Hoc and Retired Judges

Although Article 127 (ad hoc judges) and Article 128 (retired judges) serve similar purposes, they differ in scope and application:

Both provisions collectively ensure continuity in judicial functioning and institutional resilience of the Supreme Court.

Practical Implications

In practice, Article 128 provides several advantages:

• Retired judges are sometimes requested to preside over special benches to handle specific categories of cases.
• Their temporary service helps address case congestion and ensures judicial timeliness.
• It allows the judiciary to benefit from institutional memory and judicial wisdom, especially in complex constitutional and commercial matters.

However, the use of Article 128 remains infrequent, primarily due to:

• Reluctance of retired judges to return to judicial duties;
• Logistical challenges and procedural formalities;
• The preference for strengthening permanent judicial capacity through new appointments.

Limitations

Despite its utility, Article 128 is not without constraints:

1. Temporary Nature:
   • The appointment is purely short-term, depending on the discretion of the CJI and the consent of the retired judge.
2. Dependence on Executive Approval:
   • The process requires the President’s prior consent, introducing an element of executive involvement.
3. Limited Scope:
   • Retired judges can act only for the period specified and have no permanent judicial responsibilities.
4. Underutilisation:
   • The provision is rarely invoked, despite rising judicial pendency.

These limitations have led to calls for revitalising Article 128 as a practical measure to enhance the Supreme Court’s functional efficiency.

Contemporary Relevance

In the modern context, where the Supreme Court faces a mounting backlog of cases, Article 128 offers a pragmatic solution. The judiciary and government have periodically considered utilising this provision more actively to:

• Expedite case disposal,
• Address complex constitutional issues requiring seasoned expertise, and
• Strengthen the overall judicial process.

The Law Commission of India (Report No. 245, 2014) recommended the use of retired judges to augment the strength of the Supreme Court and High Courts, underlining the constitutional legitimacy of this practice.

Conclusion

Article 128 of the Indian Constitution is a testament to the flexibility and foresight of the framers, ensuring that the Supreme Court retains its functional strength even during periods of shortage or exceptional demand. By authorising the Chief Justice of India to recall retired judges — with the consent of the President and the judges themselves — the provision provides a pragmatic mechanism to sustain judicial efficiency.