Kashish Jain
The Apex court ruled that a vacancy position of more than 20 percent of the sanctioned strength of the High Court should be the trigger for the Chief Justice of the concerned High Court to initiate the appointment of ad hoc judges.
The judgment was delivered by a Bench of Chief Justice of India, S A Bobde and Justices Sanjay Kishan Kaul and Surya Kant. This was about a petition filed by NGO Lok Prahari.
According to the Judgment, other considerations for the appointment of the ad hoc judges would be for:
– Cases in a particular category are pending for over five years.
– More than 10 percent of pending cases are over five years old.
– 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
– 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.
The top court has made it extremely clear that this process will not replace the already exiting process for regular appointment. The Judgment states,
“We have already observed that the recourse to Article 224A is not an alternative to regular appointments. In order to emphasize 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.”
With respect to the guidelines for the pre-recommendation process, the Apex Court has ruled that the High Court must take the following points into consideration:
– Past performance of recommendees in both quality and quantum of disposal of cases;
– 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;
The Judgment further reads,
“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.”
The Supreme Court stuck to paragraph 24 of the memorandum of Procedure by laying down the procedure for appointment under Article 224A of the Indian Constitution.
However, 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, the Court noted.
Carving out the role of ad-hoc judges, the three-judge Bench stated that the primary objective would be to deal with long pending arrears and that the said objective will be “subserved by assigning more than five year old cases to the ad hoc Judges so appointed”.
The Supreme Court has also barred ad hoc Judges from performing any other legal work whether it be advisory, arbitration or appearance.
The Court also stated,
“The emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.”
Further, the number of ad hoc Judges should be in the range of two to five in a High Court.
The Court elaborated,
“We may note that unlike a writ remedy, a continuing mandamus is an innovative procedure not a substantive one which allows the Court an effective basis to ensure that the fruits of a judgment can be enjoyed by the right-bearers, and its realisation is not hindered by administrative and/or political recalcitrance. It is a means devised to ensure that the administration of justice translates into tangible benefits,”
The case will, therefore, be heard again after four months.
The CJI brushed aside the Central Government’s concerns about the appointments of ad hoc judges to be derogatory and the retired judges being more interested in the retired judges being more interested in other lucrative avenues such as arbitration, and he stated that the consent of the concerned judge will be taken before he or she is appointed an ad hoc judge.
Bobde stated,
“The CJI will definitely have a talk with the retired judge who is proposed to be appointed. If the judge think he has something better to do, he will say no. This is not bonded slavery.”