The Supreme Court has issued guidelines to appoint ‘ad-hoc judges’ to High Courts. On 20 April 2021, a bench consisting of CJI Bobde, J SK Kaul and J Surya Kant issued an order in Lok Prahari v. Union of India.
40% Vacancy in High Courts: 42% of Cases Pending for More than 5 Years
The bench noted that pendency in High Courts is very high. As of 5 May, there are 57.8 lakh pending cases across High Courts. Around 42% of these have been pending for more than 5 years. This poses a particular concern for the efficient administration of justice.
Out of a sanctioned strength of 1080 judges, there are 420 vacancies (as of 1 May). This is close to 40% vacancies. However, the Madras High Court, which has the highest pendency at 5.8 lakh cases, has only 7% vacancies. The bench notes that the lack of adequate judges is one of the reasons for the increasing arrears in Courts. However, even if vacancies are filled, arrears may continue, as in the case of Madras.
Article 224A: A ‘Dormant’ Provision Invoked Only Thrice
Article 224A was present in the original Constitution as Article 224, but removed in 1956 by the 7th Amendment. In 1963, the 15th Amendment reinserted it in its current form. According to it, a Chief Justice of a High Court may request a retired High Court judge to sit as a High Court judge. They would ‘have all the jurisdiction, powers, and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court’. One important condition is that the retired judge must consent.
The Court clarified that an ad-hoc judge cannot be transferred. And the additional time as an ad-hoc judge does not add to their pension. It also noted that all emoluments, perks and allowances would be identical to a sitting High Court judge.
In the Constituent Assembly, most of the speeches seemed to indicate that the Article was a provision to invite judges with expertise to deal with particularly difficult matters. When it was reintroduced, it was unclear what the purpose was from Parliamentary records.
Since then, the provision has been called into operation only three times. All of them were appointments for a specific purpose: to deal with election petitions, an inquiry into communal riots and a Special Bench to hear the Ayodhya title dispute.
The bench held that even if the original intent was ‘slightly different, nothing prevents it from being utilised to subserve an endeavour to solve an existing problem’. The 79th, 124th and 188th Law Commission Reports had also recommended using the Article to address pendency. So had AM Singhvi, in a 2020 festschrift.
Ad Hoc Judges to be Appointed when Backlog hits 10% or Vacancies are Above 20%
The bench decided that guidelines would be required to ensure ad-hoc judges are appointed to address pendency. They found that this would require a periodic review, with continuous input from various stakeholders in the legal and political community. So, the bench issued guidelines under a ‘continuing mandamus’. This means the case was not disposed. Instead, it can be taken up again and fresh orders passed later as required.
The guidelines include a ‘trigger point’ for when ad-hoc judges can be considered. This is either when vacancies are at more than 20% of the sanctioned strength, there is a backlog in cases in a particular category or a 10% backlog in general, or if the rate of institution of new cases is more than the rate of disposal.
Further, there can be an ‘embargo’ on appointments. This is when recommendations have not been made for more than 20% of the vacancies. These guidelines ensure ad-hoc judges are appointed only when the need arises. And that they are not used as an alternative to regular appointments.
The High Court should maintain a panel of willing judges from which to pick ad-hoc judges. They should be judges who preferably retired in the previous year. They must be selected only after personal interaction with the Chief Justice of the High Court.
Ad-hoc judges should generally have a tenure of 2-3 years. Depending on the strength of the High Court and the problems it faces, they may appoint 2-5 judges. They should deal primarily with cases older than 5 years. However, the High Court has the discretion to appoint the judge for another purpose if required. They also cannot be a part of a Division Bench with a sitting judge.
A Memorandum of Procedure was prepared after the Second Judges’ Case in 1998. In paragraph 24, it contains the procedure to appoint judges under Art. 224A. It will be initiated by the Chief Justice of the High Court, with the consent of the President. The bench approved this process for appointment, for the time being. It held that the process should be started around 3 months in advance of when the need may arise, to avoid delay.
In a connected matter (PLR Projects v. Mahanadi Coalfields), they also set timelines for the appointment of permanent judges to the High Courts. They held that the Intelligence Bureau must submit their report in 4-6 weeks. The Central Government must then act on it within 8-12 weeks. Further, if the Supreme Court collegium reiterates a recommendation unanimously, the appointment must be made within 3-4 weeks by law.