The Constitution of India
Article 128
Attendance of retired Judges at sittings of the Supreme Court
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 requested 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 that Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
Why this exists
The framers wanted a safety valve to help the Supreme Court manage temporary shortages of judges or heavy backlogs without going through the lengthy process of permanent appointments. By allowing experienced retired judges to step in temporarily, the provision preserves institutional memory and expertise while respecting the voluntary nature of judicial service after retirement.
Common misconceptions
- Myth: A retired judge can be forced to return to the Supreme Court under Article 128.
Fact: The proviso explicitly states that no such person can be required to sit and act as a judge unless they consent to do so. - Myth: A judge who sits under Article 128 becomes a permanent Supreme Court judge again.
Fact: The Article says such a person has all the powers and privileges of a judge while sitting, but is not otherwise deemed to be a Supreme Court judge.