Actual Article
Article 128: Attendance of retired Judges at sittings of the Supreme Court
- Attendance of Retired Judges:
- 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 a High Court and who is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court.
- Conditions and Powers:
- Any such person 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 the Supreme Court.
UPSC Notes for Article 128
Explanation:
- Attendance of Retired Judges:
- The Chief Justice of India (CJI) can request retired judges of the Supreme Court or High Courts to sit and act as judges of the Supreme Court.
- This request requires the previous consent of the President.
- Conditions and Powers:
- Retired judges who are requested to sit in the Supreme Court are entitled to allowances determined by the President.
- These judges have all the jurisdiction, powers, and privileges of a Supreme Court judge while serving in this capacity, though they are not otherwise deemed to be permanent judges of the Supreme Court.
Key Points:
- Judicial Continuity: Allows for the temporary inclusion of experienced judges to address short-term needs or case backlogs.
- Executive and Judicial Coordination: Requires the President’s consent, ensuring checks and balances between the executive and judiciary.
- Flexibility: Provides flexibility in judicial administration by utilizing the expertise of retired judges.
Important Cases and Commissions Related to Article 128
Cases:
- Union of India vs. Sankalchand Himmatlal Sheth (1977): Emphasized the need for maintaining judicial efficiency and continuity, indirectly supporting the provisions of Article 128.
- Krishna Swami vs. Union of India (1992): Highlighted the importance of quorum in judicial functioning, reinforcing the relevance of temporary judicial appointments.
Commissions:
- Second Administrative Reforms Commission: Suggested measures to enhance judicial efficiency and address issues related to the shortage of judges.
- National Commission to Review the Working of the Constitution (NCRWC) (2002): Recommended reforms to ensure the timely appointment of judges and the use of retired judges to address case backlogs.
Previous Year Prelims Questions Related to Article 128
- (UPSC Prelims 2017) Under Article 128, the Chief Justice of India can request the attendance of a retired Judge of the Supreme Court or High Court with the previous consent of:
- A. The Prime Minister
- B. The Attorney General
- C. The President
- D. The Chief Justice of the concerned High Court Correct Answer: C. The President
- (UPSC Prelims 2018) Which of the following is correct regarding a retired judge sitting and acting as a Judge of the Supreme Court under Article 128?
- A. They do not have the jurisdiction and powers of a Supreme Court judge.
- B. They have all the jurisdiction and powers of a Supreme Court judge.
- C. They are considered permanent judges of the Supreme Court.
- D. They do not receive any allowances. Correct Answer: B. They have all the jurisdiction and powers of a Supreme Court judge.
Previous Year Mains Questions Related to Article 128
- Mains 2016: “Discuss the significance of Article 128 in ensuring the continuity of the Supreme Court’s functioning. How does the attendance of retired judges contribute to judicial efficiency?”
- Mains 2019: “Analyze the role of the Chief Justice of India and the President in the appointment of retired judges under Article 128. How does this provision help in addressing the backlog of cases in the Supreme Court?”
Additional Insights:
- Judicial Efficiency: Article 128 ensures that the Supreme Court can function efficiently even during times of increased workload or judge shortages by leveraging the experience of retired judges.
- Expertise Utilization: The provision allows the judiciary to benefit from the vast experience of retired judges, ensuring high standards of judicial deliberation and decision-making.
- Coordination for Judicial Functioning: The requirement for the President’s consent emphasizes the need for coordination between the judiciary and the executive, ensuring that appointments are made judiciously and with due consideration.
Understanding Article 128 is crucial for UPSC aspirants as it outlines the provisions for the attendance of retired judges at sittings of the Supreme Court, ensuring the maintenance of judicial efficiency and continuity. This knowledge is essential for both preliminary and main examinations, offering a comprehensive understanding of the constitutional provisions that support the effective administration of the judiciary within India’s legal framework.