Article 128 of the Costitution of India with Case law
Article 128 of the Constitution of India
Title: Attendance of retired Judges at sittings of the Supreme Court
🔹 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 to sit and act as a Judge of the Court; and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and shall have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court."
📘 Explanation of Article 128:
Purpose: To ensure the availability of judicial manpower in the Supreme Court when required.
Who Can Be Called?: Retired Judges of the Supreme Court.
Who Decides?: The Chief Justice of India (CJI), with prior consent of the President.
Powers: Retired judges recalled under Article 128:
Have the same powers and jurisdiction as sitting SC judges while acting.
But are not considered full-time judges for other purposes (e.g., tenure, seniority).
⚖️ Key Case Laws Related to Article 128:
1. Suraz India Trust v. Union of India, (2012) 13 SCC 497
Relevance: The Supreme Court discussed judicial reforms and the appointment of judges. Though not directly about Article 128, the Court observed the need to improve the functioning of the judiciary, including using retired judges under Articles 127 and 128 to clear backlog.
2. Justice P. Venugopal (Retd.) Case
Context: He was once appointed under Article 128 to assist the Supreme Court. The case wasn’t a challenge but an example of invocation of Article 128.
Significance: Demonstrates the practical use of Article 128 by CJI when bench strength is insufficient or expertise is needed.
3. Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273
Relevance: Though the case was about judicial appointments under Articles 124–127, the Court upheld the principle that appointments of judges, including temporary or acting ones, must follow constitutional procedures, including Articles like 128.
✅ Summary Table:
| Feature | Details |
|---|---|
| Article No. | 128 |
| Applies to | Retired Supreme Court Judges |
| Appointing Authority | Chief Justice of India (with President’s consent) |
| Role | Temporarily act as Supreme Court Judge |
| Powers Granted | Same as a regular Judge during that time |
| Purpose | Address judicial workload or need for special expertise |
| Allowances | Decided by the President |
| Not full-time Judges | No implication on tenure, seniority, or pensions |
📌 Related Article:
Article 127 – Similar provision for High Courts where retired High Court judges can be appointed to act temporarily.
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