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Centre’s conditions to select ad hoc judges cumbersome: Supreme Court
The Centre attached nearly 20 service conditions to appointment of ad hoc judges, which included a six-monthly review of their performance, a report to be drawn out on the judgments delivered, and minimum three years’ service as district judicial officer, among other conditions
The Supreme Court on Thursday told the Centre that the objective of reducing pendency of cases in the high courts should not get defeated by the “cumbersome” procedure to appoint retired judges as ad-hoc judges to high courts under Article 224A of the Constitution, and asked the government to rework the memorandum of procedure (MoP) in this regard within two months.
Finding the conditions imposed for appointment of ad-hoc judges to be a deterrent for retired judges to give their consent, a three-judge bench headed by justice Sanjay Kishan Kaul said, “The very nature of this provision (Article 224A) is to provide a quick methodology to bring down pendency. We should not make the procedure so cumbersome that it defeats the objective. This will not work.”
According to Article 224A, the chief justice of a high court can request a retired judge of any high court to become a judge of that particular high court. Such appointment would come into effect with the approval of the President of India, the provision stated.
In April 2021, the Supreme Court laid down certain guidelines for making appointment of ad hoc judges on a petition filed by NGO Lok Prahari. The judgment noticed that Article 224A has largely been a “dormant provision” with only three recorded instances of its invocation in 1972 (Madhya Pradesh high court), 1982 (Madras high court) and 2007 (Allahabad high court). The judgment laid down that ad hoc judges may be appointed for a minimum period of two to three years and should be invoked where vacancies are more than 20% of the sanctioned strength or where more than 10% of pending cases in a high court are more than five years old.
The judgment required the Centre to file status reports.
On Thursday, the first such status report was shared by Attorney General (AG) R Venkatramani with the court. Based on the judgment, the Centre attached nearly 20 service conditions to appointment of ad hoc judges, which included a six-monthly review of their performance, a report to be drawn out on the judgments delivered, and minimum three years’ service as district judicial officer, among other conditions.
“Nobody will be ready to work with these conditions...You are not selecting him for the first time. These are persons willing to take the load of work. They are being given this opportunity because they are good,” said the bench, also comprising justices AS Oka and Vikram Nath.
Senior advocate Arvind Datar assisting the Court as amicus curiae said, “We are leveraging the advantage of their expertise. Each high court has got a special need. Almost all high courts have huge pendency of criminal appeals, first appeal and second appeal cases. In Bombay high court, there is a huge pendency of tax appeals.” Justice Kaul shared his experience at the Punjab and Haryana high court which has an unusually high number of motor accident compensation appeals.
The bench asked the Attorney General and Datar to sit together and devise how the MoP could be made workable. One of the challenges which the court voiced was regarding some of the big high courts such as Allahabad, Patna and Bombay, where regular vacancy of judges is to the tune of 50%.
“Special needs of some big high courts must be considered (in the MoP) where historically the vacancies are over 50% and it is a challenge to fill them,” the bench said.
The April 2021 judgment of the Supreme Court said ad hoc judges’ appointment cannot be resorted to “if recommendations have not been made for more than 20% of the regular vacancies”. The bench told the AG that internally, there is a debate going on within judiciary on having an exception to this norm as it is a “Catch 22 situation” for those high courts with significantly high vacancies.
The court also suggested that some senior lawyers are willing to offer their services as ad hoc judges as they are willing to serve on the bench for a limited period of two to three years but not commit to a longer tenure. Such lawyers have even expressed their desire not to practice before the same bench where they will serve as ad-hoc judges.
“The objective is to put people of specialised subjects in place to decide cases. The target should be to dispose old cases. Many lawyers of eminence have approached us to do some kind of service to the institution as part of their corporate social responsibility. This needs some thinking,” the bench said as it asked AG and Datar to examine how this was possible.
Datar said it was worth trying. “Let us appoint 5 to 6 seniors and see how it works,” the amicus said. The bench adjourned the matter to February 8.
In its 2021 judgment, the SC had noted that across high courts, 56.4% cases were pending for less than five years whereas 40% of the pending cases were 5 to 20 years old. The primary purpose of appointing ad hoc judges was felt to deal with cases pending for over five years. The judgment delivered on April 20, 2021 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.”
