Legal Notes by Arvind Datar: Reviving the neglected Articles 128 and 224A

With the increasing pendency of cases in the Supreme Court, it is clear that the existing strength of judges would be inadequate to clear the backlog, particularly old civil and criminal appeals, as well as the large number of bail and transfer applications.

It is time to utilise the neglected but useful Article 128 that enables retired Supreme Court judges to once again hear and dispose pending cases. Interestingly, by the Constitution (15^th Amendment) Act, 1963, even retired High Court judges who were duly qualified to be appointed to the Supreme Court can be requested to sit and act as judges of the Supreme Court. This amendment has never been utilised till date. Several outstanding High Court judges who could not make it to the Supreme Court for myriad reasons can still be requested to sit for two or three years and help clear the backlog.

Article 128 has been invoked in the past, and the service of outstanding judges have been utilised. As per Judges of the Supreme Court of India by George H Gadbois, three instances of such appointments are given. 

Justice Chandrasekara Aiyar retired on January 25, 1953. Chief Justice Mukherjee fell ill and recommended that Justice Aiyar be recalled to serve as a Supreme Court judge, which he did for two terms: from September 5 to October 31, 1955 and for another period from December 1, 1955 till May 11, 1956. Gadbois writes that Justice Aiyar was 68 at the end of his second stint. Sadly, he passed away the next year.

The legendary Justice Vivian Bose was sworn in on March 5, 1951 and become the final member of the original bench. After his retirement on June 9, 1956, Chief Justice SR Das requested him to return under Article 128. He served on the Supreme Court Bench from September 9, 1957 till September 1958.

Justice TL Venkatarama Iyer was appointed to the Madras High Court on July 7, 1951 and retired just 28 months later. Six weeks after his retirement, he was sworn in as a Supreme Court Judge on January 4, 1954, and served for almost five years before retiring on November 25, 1958. More than two years after his retirement, Chief Justice Sinha requested him to return as a retired judge and he served for two terms from March 1 to April 30, 1961, and again from December 20, 1961 till May 6, 1962. At the time of his final term, he was more than 68 years old. Interestingly, he was also serving as Chairman of the Law Commission of India, from December 20, 1958, to December 19, 1961.

The backlog in some of the High Courts is staggering and the appointment of new judges sometimes takes considerable amount of time. In some High Courts, the vacancies are quite substantial.

The 15^th Amendment not only amended Article 128, but also inserted Article 224A, enabling retired High Court judges to be re-appointed for a two or three-year period. The further flexibility is that a retired judge of one High Court can be requested to sit as a judge of another High Court.

It is submitted that Article 128 should be invoked once again and retired Supreme Court judges and outstanding High Court judges should be requested to “return” under Article 128.

It is submitted that it is urgently necessary to utilise this useful provision and appoint Supreme Court and High Court judges under Articles 128 and 224A. If nothing else, it may be worthwhile appointing retired judges on an experimental basis at least in a few High Courts to begin with. If the experiment is successful, it can be replicated in several other High Courts. It may be added that a PIL for appointment of retired judges under Article 224A is pending before the Supreme Court.

Arvind P Datar is a Senior Advocate of the Supreme Court.