The Supreme Court on Tuesday cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution to deal with mounting backlog of cases.
A bench headed by Chief Justice of India S A Bobde, and comprising Justices S K Kaul and Surya Kant, 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.”
Deciding a plea by NGO Lok Prahari seeking appointment of ad-hoc judges to clear the case backlog, the court said “it is trite to say that we have a docket explosion in our country and that it is difficult for adjudication to take place within a reasonable period of time”.
“This crisis situation must be tackled. Some innovation is always the rule of the game. In the present context, maybe a slightly different view has to be taken in respect of the avowed purpose of Article 224A providing for ad-hoc judges. We say so as we are faced with the ground reality of almost 40% vacancies remaining in the regular appointments [both permanent and additional judges] over the last two years… A number of vacancies arising every year are barely filled in by fresh appointments. Thus, it remains an unfulfilled challenge to bring the appointment process to such numbers as would be able to cover the vacancies existing and arising,” the bench said.
The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength, cases in a particular category are pending for over five years, more than 10 per cent of pending cases are over five years old, or 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.
The Chief Justice, it said, should prepare a panel of judges after personal interaction with the concerned judge to take their consent.
The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges. Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period, it said.
On the timeline for their appointment, the court said “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”. Their tenure, the court said, may vary on the basis of the need but “generally… should be for a period between two and three years”.
Depending on the strength of the High Court and the problem faced by it, the number of ad-hoc judges in the court should be in the range of two to five for the time being, it said.
Since the goal was to clear the backlog, the ad-hoc judges can be assigned more than five-year-old cases, it said, adding that this would not, however, affect the High Court Chief Justice’s discretion to allot any other matter.
In case there is a need to constitute a Division Bench to hear a matter, it would comprise of only ad-hoc judges and not a mix of ad-hoc and sitting judges, the court said. It also barred ad-hoc appointees from performing any other legal work – advisory, arbitration or appearing in court for clients.
Their emoluments and allowances should be on a par with a permanent judge of that court minus the pension, the Supreme Court said, adding that they will be entitled to allowance/perks/perquisites as are available to permanent/additional judge(s).