SC seeks govt report on re-appointment of retired judges

More than a year after it activated a dormant constitutional provision to pave the way for appointment of retired high court judges to clear backlog of cases, the Supreme Court has sought a report from the Union government on whether any such appointment had been approved, as it observed that “judiciary’s promise of speedy justice” has taken a hit due to paucity of judges. link

A bench headed by Justice Sanjay Kishan Kaul pointed out that there are almost six million cases pending across 25 high courts in the country and that it is high time the Centre apprise the court of the status of appointment of ad-hoc judges. link

Article 224A of the Constitution, used rarely, deals with appointment of ad-hoc judges in high courts and says “the chief justice of a high court for any state may at any time, with the previous consent of the President, request any person who has held the office of a judge of that court or of any other high court, to sit and act as a judge of the high court for that state.” Ad-hoc judges are appointed for a period of two to three years. link

The top court, during a recent hearing, noted that there were several high courts, including Allahabad, Bombay, Madhya Pradesh and Punjab and Haryana, where more than one-third of judges were yet to be appointed while the cases kept mounting. link

“How are we going to fulfill the promise of speedy justice? The regular appointments are not coming through for a variety of reasons while the case loads are piling up. This is why we gave our judgment last year putting in place all checks and balances, so that everything can be balanced,” the bench, which also included justices AS Oka and Vikram Nath, observed. link

It requested attorney general KK Venugopal, appearing for the Central government, to place all the relevant information before the top court by September 27 on recommendations made by various high courts to the Centre for appointing ad-hoc judges and steps taken subsequently. link

“Learned Attorney General submits that he needs some time to file status report as to whether any recommendations on ad-hoc judges have been made and the fate thereof. Another aspect, with experience, we are finding is that though we have put a bar of not more than 20% vacancies for making recommendation for ad-hoc judges.  link

The fact remains that some of the courts where there are large number of vacancies are also troubled with arrears and in some specific subjects. We request the learned Attorney General to give a thought to this process as to how this particular aspect can be addressed,” stated the court in its order. link

The court, in an April 2021 judgment, had laid down a few trigger points for the chief justice of a high court to initiate the process of appointing ad-hoc judges. It held that the recourse to Article 224A would not arise if a high court has not made recommendations for more than 20% of the regular vacancies of judges.  link

Other stipulations included that judicial vacancies should be more than 20% of the total strength of that high court and more than 10% of the backlog of pending cases are over five years old. link

Before the court, the Centre had taken a stand that it was not in favour of appointing ad-hoc judges in high courts until recommendations for all regular appointments were not made by chief justices of those courts concerned. link

But the Supreme Court called it a “self-defeating argument”, adding the very reason Article 224A exists is to remedy a situation where vacancies have not been filled up and the arrears are mounting. link

“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,” the court said in its April 2021 judgment.

According to statistics available on the National Judicial Data Grid, there are 5,952,371 cases pending across the high courts. More than 40% of these cases are at least five-years-old, with civil cases comprising the lion’s share. link

Of the 1,108 sanctioned strength of judges across all high courts, 326 posts (almost 30%) were vacant as on September 1, as per the data available on the Union law ministry .


    Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance.

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