UPSC Prelims 2021 Q88: Retired Judges and Review Power — Explained
With reference to Indian judiciary, consider the following statements:
1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the President of India.
2. A High Court in India has the power to review its own judgement as the Supreme Court does.
Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Answer: (a) 1 only
Statement-wise explanation
- 1: correct — Article 128 says the Chief Justice of India may, at any time and with the previous consent of the President, ask any person who has held office as a Supreme Court judge to sit and act as a judge of that Court. The person must also agree; the Constitution cannot force them to sit. While sitting, they draw allowances fixed by the President and have the jurisdiction, powers and privileges of a Supreme Court judge, but they are not treated as a judge for any other purpose. The statement leaves out the judge's own consent, but everything it does say matches Article 128.
- 2: incorrect — The official key marks this statement wrong. The likely reason is that the Constitution expressly gives the Supreme Court power to review its own judgments in Article 137, and no article does the same for High Courts. In practice, though, High Courts do review their own judgments. They do so under Section 114 and Order XLVII of the Code of Civil Procedure and under their plenary writ jurisdiction, which the Supreme Court recognised in Shivdeo Singh v. State of Punjab (1963). See the answer dispute note.
How to eliminate
Statement 1 can be solved from the text of Article 128, which is a standard topic. It names the right actor (the CJI), the right check (prior consent of the President) and the right pool (retired Supreme Court judges). Nothing in it sounds overstated. Once you know Statement 1 is correct, only the options "1 only" and "Both 1 and 2" remain. Statement 2 is the hard part. Basic reasoning about how courts work says High Courts can review their own orders, and they regularly hear review petitions. UPSC's key instead follows a narrow, text-based reading: the Constitution expressly gives review power only to the Supreme Court (Article 137). Facts to remember: Article 128 covers retired judges sitting in the Supreme Court, Article 224A covers retired judges sitting in High Courts, and Article 137 is the only express constitutional provision on a court reviewing its own judgments. On this question, UPSC's key followed that last point.
Know more
Temporary judges and review power
The Constitution lets courts borrow judges for a while when they are short of judges or have a backlog of cases. Each kind of temporary judge has its own article:
| Article | Who sits | Who requests | Check |
|---|---|---|---|
| 127 | Serving High Court judge qualified for the Supreme Court (ad hoc judge) when the SC lacks a quorum | CJI | Previous consent of President; consult the HC Chief Justice |
| 128 | Retired SC/Federal Court judge, or retired HC judge qualified for the SC | CJI | Previous consent of President; judge's own consent |
| 224 | Additional or acting HC judges | President appoints | Fixed term (additional judges up to 2 years) |
| 224A | Retired HC judge | HC Chief Justice | Previous consent of President; judge's own consent |
The Constitution (Fifteenth Amendment) Act, 1963 inserted Article 224A. It also widened Article 128 to include retired High Court judges qualified for the Supreme Court. A retired judge sitting under Article 128 or 224A has a judge's powers while sitting, but is not otherwise treated as a judge.
Review and curative petitions
- Article 137: the Supreme Court may review its own judgments, subject to law and to rules made under Article 145.
- Curative petition: created by the Supreme Court in Rupa Ashok Hurra (2002). It is a last remedy after a review petition has been dismissed.
- High Courts: they have no express review article. They review their orders under the CPC (Section 114, Order XLVII) and as courts of record (Article 215) with plenary writ jurisdiction (Article 226).
- Grounds for review are narrow: an error apparent on the face of the record, new evidence, or another sufficient reason. A review is not a second appeal.
In the news
In April 2021, in Lok Prahari v. Union of India, the Supreme Court revived the little-used Article 224A on retired judges sitting in High Courts and laid down when it may be used. This pushed provisions on recalling retired judges into the news before the 2021 Prelims.
NCERT Concepts to Revise
- Retired judges sitting in High Courts: Article 224A is the High Court counterpart of the Article 128 provision tested in Statement 1.
- Ad hoc judge: Ad hoc judges under Article 127 are easily confused with retired judges recalled under Article 128.
- Review petition: Statement 2 asks whether review power, expressly given to the Supreme Court by Article 137, extends to High Courts.
- Chief Justice of India: Statement 1 depends on what the CJI can do and whose consent the CJI needs.
- Curative petition: Curative petitions sit next to review in the Supreme Court's powers to correct its own judgments.