Article 224A of the Constitution allows the Chief Justice of a High Court to appoint a person who has been a judge earlier to sit as a judge of the court with the previous consent of the President. This has only been invoked thrice in the past and has more or less stayed dormant for years.
The Supreme Court on Tuesday issued a set of directions which set the pace for the appointment of retired judges as ad hoc judges to the high courts, especially those which have a lot of pending cases.
“The current situation of the vacancies, especially in some larger courts with very few recommendations in the pipeline seems to be the genesis of the problem,” the bench said.
Article 224A of the Constitution allows the Chief Justice of a High Court to appoint a person who has been a judge earlier to sit as a judge of the court with the previous consent of the President. This has only been invoked thrice in the past and has more or less stayed dormant for years. The court activated it on Tuesday despite opposition from the government.
The government had said that high courts must not invoke this till they filled up all regular vacancies. The top court said that the Article would be invoked by a High Court Chief Justice only under certain conditions.
These would include vacancies of a court exceeding 20% of the sanctioned strength, 10% of pending cases must be over five years old and the disposal rate must be lower than the filing rate of new cases.
The bench gave the Department of Justice four months to file a report on the progress made in making such appointments.
The top court noted that 40% vacancies in high courts had led to an accumulation of 57 lakh cases in the country. Five high courts –– Madras, Bombay, Rajasthan, Punjab and Haryana and Allahabad –– contributed to 54% of the pendency, the court said.
Madras High Court has only 7% vacancies in its sanctioned strength but has highest arrears –– at 5.8 lakh cases. Calcutta High Court has 44% vacancies but has 2.7 lakh pending cases. In Punjab and Haryana High Court, vacancies had almost doubled in the past six years.
The appointment of these judges from among retired judges will be done at the discretion of the chief justice of the high court who will initiate the process. Their salaries and allowances would come from the Consolidated Fund of India.
They would have a minimum tenure of 2 to 3 years. They would only handle old cases which have been pending for at least 5 years without a hearing. They will also remain free of administrative responsibilities which bog down other judges. These judges will be appointed in addition to the existing regular appointments, the bench, which also comprised Justices AS. Bopanna and V Ramasubramanian said. Such periodic appointments were being made without unnecessarily waiting for the regular appointments, the court said.
The court also laid down timelines to ensure that no recommendation made by the high courts lands up with the top court collegium late. These recommendations go from the high court to the top court through the law ministry for security approvals. The whole process of government clearance must not take more than four months, the top court said.