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.
Source: Barandbench
