ILNS: The Supreme Court on Tuesday observed that the challenge of mounting arrears and existing vacancies requires recourse to Article 224A of the Constitution to appoint Ad-Hoc Judges, which is a ready pool of talent (subject to their concurrence) as a methodology, especially for clearing the old cases.
A bench of Chief Justice S.A. Bobde, Justice Sanjay Kishan Kaul and Justice Surya Kant laid down guidelines regarding the matter to clear the backlog of cases in various High Courts across the country.
The Court said,
“We see no reason why there should be an unending debate of taking recourse to Article 224A ,when such a provision exists in the Constitution. It should not be made a dead letter, more so when the need is so pressing.”
While emphasising on the importance of appointing the Ad-Hoc Judges, the top court said the existing strength of permanent and additional judges can be utilised for current and not so old cases. The Ad-Hoc Judges are absolved even from the administrative responsibilities. They can concentrate on old cases which are stuck in the system and may require greater experience.
The bench also refused to entertain the submissions made by the Centre through Attorney General K.K. Venugopal, that first the existing vacancies should be filled in. The top court said,
“We are unable to accept the plea of the learned Attorney General that though the Government of India may not have any in-principle opposition to the aforesaid (process of appointing as-hoc judges), first the existing vacancies should be filled in.”
The court said, “In our view, this would be a self-defeating argument because the very reason why at present Article 224A has been resorted to is the non-filling up of vacancies and the mounting arrears. We may, however, hasten to add that the objective is not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court.
“The very provision makes it clear that it does not in any way constrain or limit the regular appointment process and consent of the retired judge is sought to sit and act as a judge of the High Court. One may say that this largely a transitory methodology till all the appointment processes are in place, though that may not be the only reason to take recourse to the aforesaid Article.”
The court said, “It cannot substitute the regular process. We also have no doubt that we would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments.
“In order to prevent such a situation, we are of the view that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. We are, thus of the view that there should not be more than 20 percent of the vacancies, for which no recommendation has been made for this Article to be resorted to.”
The court further said, “We have given deep thought to the slightly different perspectives placed before us by way of affidavits by the different High Courts and the Union of India.
“While emphasising that recourse to Article 224A is the necessity of the day, and without inhibiting the expanse of the powers conferred on the Chief Justice of the High Court as per the Constitution, it would be in the fitness of things to lay down some guidelines for assistance of the Chief Justices of the High Courts and to make the provision a ‘live letter’,” it added.
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Guidelines:
i) Trigger Point for activation:
The discretion of the Chief Justice of the High Court under Article 224A is not constrained but as stated, some general guidelines are required to be laid so that power conferred under the said provision is exercised in a transparent manner. The Trigger Point cannot be singular and there can be more than one eventuality where it arises
a. If the vacancies are more than 20% of the sanctioned strength.
b. The cases in a particular category are pending for over five years.
c. More than 10 percent of the backlog of pending cases are over five years old.
d. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
e. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.
ii) Embargo Situation:
We have already observed that the recourse to Article 224A is not an alternative to regular appointments. In order to emphasise this aspect, we clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.
iii) Pre-recommendation process:
a. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
b. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.
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iv) Methodology of Appointment:
We have already noticed that para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution. We have also noticed that it is not law laid down in this behalf under Article 141 of the Constitution but as a first step it may be more appropriate to follow this procedure laid down in para 24 of the MoP to see the progress made and impediments, if any. We may, however notice that since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.
v) Time to complete the process:
The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. In view of number of aspects not required to be adverted to for appointment under Article 224A we are of the view that a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.
vi) Tenure of Appointment:
The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.
vii) Number of Appointments:
We are also of the view that, at least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.
viii) Role of ad hoc Judges:
The primary objective being to deal with long pending arrears, the said objective will be subserved by assigning more than five year old cases to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind.
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ix) Emoluments and Allowances:
We have already discussed in the substantive part of the order that the emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension. This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.
The Court said, “We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out. We must set aside apprehensions, if any, to chart this course and we are confident that there will be a way forward. In view of the requirements of a continuous mandamus to see how a beginning has been made, list after four months calling upon the Ministry of Justice to file a report in respect of the progress made.”
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