1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 1236 OF 2019
LOK PRAHARI THROUGH ITS
GENERAL SECRETARY S.N. SHUKLA
IAS (RETD.) .. PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. .. RESPONDENT(S)
J U D G M E N T
1. The intent of our order today is to activate a dormant provision of
the Constitution of India – Article 224A – for the appointment of ad hoc
Judges to deal with the unprecedented situation arising from the backlog
of cases pending in the High Courts, which has now crossed the figure
of 57 lakh coupled with the consistent ratio of vacancies of almost 40
per cent. Any Constitution has to be dynamic, and thus, even if the
intent behind including the provision (as it appears from the Constituent
Assembly Debates) was slightly different, nothing prevents it from
being utilised to subserve an endeavour to solve an existing problem.
For as it is always said, ‘change is the only constant’.
2
2. India was fortunate to have some of the best minds work on the
framing of our Constitution as members of our Constituent Assembly.
The Indian Constitution is an elaborate one, taking cues from the
experience of various democracies. One of the essential aspects of our
Constitution has been the separation of powers between the Judiciary,
Executive, and Legislature.
3. Chapter V of Part VI of the Constitution of India commencing
from Article 214 upto Article 231 relates to the High Courts in the
states. Article 217 provides for the appointment and conditions of the
office of a Judge of the High Court, wherein the current age of
retirement is 62 years. We may say that broadly, it is amongst the
youngest ages of retirement of judges of the apex Court of a state in
comparison with other democracies of the world.
4. Article 224 deals with the appointment of additional and acting
judges. The objective as set out in the Article is to take care of any
temporary increase in business of the High Court, or by reason of
arrears of work therein. The appointment of an additional judge duly
qualified to be the judge of a High Court has to be for a period not
exceeding two years, or as the President may specify. The ground
reality however, remains that while determining the strength of different
3
High Courts, the practice that has been adopted is that about 25% of the
strength consists of additional Judges.
5. In the present case, we are concerned with Article 224A which
reads as under:
"224A. Appointment of retired Judges at sittings of High CourtsNotwithstanding anything in this Chapter, the Chief Justice of a
High Court for any State, may 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, and every such person so
requested shall, while so sitting and acting, be entitled to such
allowances as the President may by order determine and have all
the jurisdiction, powers, and privileges of, but shall not otherwise
be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require
any such person as aforesaid to sit and act as a Judge of that High
Court unless he consents so to do."
6. The aforesaid Article begins with a non-obstante clause and was
placed so that a request can be made to 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 the state. The second aspect is that
while sitting and acting, such a judge would be entitled to such
allowances as the President may by order determine and have all the
jurisdiction, powers, and privileges of the High Court judge; but for all
other purposes shall not be deemed to be a High Court judge. The
4
proviso stipulates that consent has to be obtained from the judge
concerned.
7. It is the say of the petitioner before us in this public interest
litigation that a large number of vacancies of High Court judges coupled
with mounting arrears is a scenario which requires urgent attention and
one of the modes to deal with both these aspects is resorting to Article
224A of the Constitution of India.
The Historical Perspective:
8. Article 224A was numbered as Article 200 in the Draft
Constitution and discussed by the Constituent Assembly on 7th June
1949. The debate focused on the purpose and duration of the
appointment of retired High Court judges. Three other specific issues
were discussed:
1) whether a retired judge must consent to his appointment;
2) whether a retired judge draws salary after his appointment as an ad
hoc judge;
3) whether the appointment of ad hoc judges was to be made with the
concurrence of the President.
9. Some part of the debates indicate that the retired judge was to be
invited back only for their expertise and experience to decide cases that
5
were particularly difficult or important; and that it may not be advisable
to call retired judges and asked them to clear off the arrears pending
before the High Court. On the other hand, Dr. B.R. Ambedkar had
clarified that the intent behind the appointment of ad hoc judges was as
an alternative to the appointment of temporary or additional judges,
which suggestion had not been accepted by the Constituent Assembly.
Thus, ad hoc judges were not intended to be appointed for an indefinite
length of time. In his words :
"It seems to me that if you are not going to have any temporary or
additional judges you must make some kind of provision for the
disposal of certain business, for which it may not be feasible to
appoint a temporary judge in time to discharge the duties of a
High Court Judge with respect to such matters."1
10. The aforesaid provision, it was emphasized by Dr. Ambedkar,
was borrowed (word for word) from Section 8 of the Supreme Court of
Judicature (Consolidation) Act, 1925 in the UK, and similar provisions
in America. It was explained that the proviso was inserted to avoid a
situation where the refusal of a retired judge to accept the invitation
could be treated as remiss of his conduct.
11. Another important aspect as emerges from the debates, was that it
was the view of Dr. Ambedkar himself that the matter of salary and
1 Speech by Dr. B.R. Ambedkar on 7th June 1949, Constituent Assembly Debates,
Vol. VIII, ¶181.
6
benefits would be governed by the rules governing pension. Thus, all
benefits would be admissible minus the pension; though the precise
definition of "privileges" of an ad hoc judge was left to the Parliament
to decide. The aspect of concurrence of the President was also debated
and introduced to bring greater transparency in the process.
12. The aforesaid provision for appointment of ad hoc judges was
removed by the Constitution (7th Amendment) Act, 1956. The objective
of that Act clarifies that this was done as the provision for recalling
retired judges for a short period had been found to be neither adequate
nor satisfactory. It was sought to be replaced by the current Article 224,
making provisions for appointment of additional judges to clear off
arrears and for the appointment of acting judges in temporary vacancies.
13. There appears to have been a legislative re-think as the provision
for the appointment of ad hoc judges was reintroduced vide Article
224A by the Constitution (15th Amendment) Act, 1963. The Lok Sabha
debates did not specifically refer to the philosophy behind the reintroduction, but this can be extrapolated from the purpose behind
introducing ad hoc appointments in the Supreme Court of India. The
debates do reflect the two points of view, i.e., a worry about a possible
"demon of patronage" and on the other hand views being expressed that
it was possibly better to call back a retired judge instead of appointing a
7
member of the Bar for a few months. The amendments seeking to
restrict the term of ad-hoc judges to three months was however, negated,
while inserting this provision in the Constitution.
Judicial Views :
14. Now we turn to the aspects arising from the aforesaid provision
being debated in certain judicial precedents.
15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.
2
- a
Constitution Bench of this Court (five judges) ruled on the issue of
whether a person sitting and acting as a Judge of the High Court under
Article 224A of the Constitution has the jurisdiction to try an election
petition under Section 80-A of the Representation of the People Act,
1951. Debate arose in the context of a judge of the Madhya Pradesh
High Court who was sitting and acting as a judge of that Court under
Article 224A of the Constitution, and his appointment was to last for a
period of one year or till the disposal of elections petitions entrusted to
him, whichever was earlier. In that context it was observed that if a
person appointed under Article 224A of the Constitution was not
considered to be a judge of the High Court for the purpose of
jurisdiction, powers and privileges, the question of appointing such a
person would never arise. The provision could not thus be rendered a
2 (1974) 1 SCC 128.
8
dead letter. It was clarified that the effect of the provision would create
a deeming fiction and the Court observed:
“15. (…) The person requested while so sitting and acting shall
have all the jurisdiction, powers and privileges of a judge of the
High Court. Such a person shall not otherwise be deemed to be a
judge of that Court. The words "while so sitting, and acting"
show that the person requested not merely has the Jurisdiction,
powers and privileges of a Judge of the, High Court, he also sits
and acts as a Judge of that Court. Question then arises as to what
is the significance of the concluding words "but shall not
otherwise be deemed to be a Judge of that Court". These words,
in our opinion, indicate that in matters not relating to jurisdiction,
powers and privileges the person so requested shall not be
deemed to be a Judge of that Court. The dictionary meaning of
the word "otherwise" is "in other ways", "in other circumstances",
"in other respects". The word "otherwise" would, therefore, point
to the conclusion that for the purpose of jurisdiction, powers and
privileges the person requested shall be a Judge of the concerned
High Court and for purposes other than those of jurisdiction,
powers and privileges, the person requested shall not be deemed
to be a Judge of that Court. It would, for example, be not
permissible to transfer him under Article 222 of the Constitution.
The use of the word "deemed" shows that the person who sits and
acts as a Judge of the High Court under Article 224-A is a Judge
of the said High Court but by a legal fiction he is not to be
considered to be a Judge of the High Court for purposes other
than those relating to jurisdiction, powers and privileges. (…)”
16. On the issue of entitlement of allowances of such an ad hoc
judge, in Justice P Venugopal vs. Union of India and Ors.,
3
it was
opined that an ad hoc judge does not become a part of the High Court
and thus there is no question of computing his pension for the period he
is appointed as an ad hoc judge. Thus, the ad hoc judge would not be
3 (2003) 7 SCC 726.
9
entitled to further pensionary benefits after he demits the Constitutional
office that he holds in terms of Article 217.
17. It may also be appropriate to turn to some of the opinions
expressed on the requirement of consent of a retired Judge. In Union of
India vs. Sankalchand Himatlal Sheth,4
it was observed that the reason
for insisting on consent was that a retired Judge cannot be compelled to
work as an ad hoc judge against his consent. This is because he ceases
to be a judge of the High Court on demitting office at the prescribed age
and is not bound by the conditions of service.
18. It is appropriate to refer to more opinions albeit of the High Court
to know how this particular aspect had been dealt with in the opinion of
the High Court. In Anna Mathew vs. N. Kannadasan though the issue
was not directly in question, the aspect of appointment of an ad hoc
judge under Article 224A of the Constitution had been adverted to.5
The
context of the view on the expression "ad hoc" is present only in Article
224A and Article 127. In that context, a reference had been made to the
Constitution Bench judgment (five judges) of this Court in Ashok
Tanwar and Anr. vs. State of H.P. and Others.6 Here, there are
observations to the effect that a consultation with the Collegium would
4 (1977) 4 SCC 193.
5 2009 (1) LW 87 (Mad) (¶ 47).
6 (2005) 2 SCC 104
10
not be necessary inasmuch as the Chief Justice is required to
recommend the name of a sitting or a retired judge. However, that was
a case dealing with appointments to the Consumer Disputes Redressal
Commission and in that context, consultation with the Collegium was
thought not necessary. However, if we turn to the judgment in Ashok
Tanwar's case (supra) we find there was actually no real discussion on
Article 224A. What was in question was whether Section 16 of the
Consumer Protection Act, 1986, (which requires the State to appoint a
person in consultation with the Chief Justice of the State) a consultation
with acting Chief Justice was sufficient compliance of the case.
19. The last judicial view we seek to refer to is of the Full Bench of
the High Court of the Judicature at Allahabad in Indian Society of
Lawyers vs. President of India which elaborately dealt with the
interpretation of Article 224A of the Constitution.7
It was observed that
an ad hoc judge does not fall within Article 216, and that he is not a
judge of the High Court so sitting and acting. The President does not
appoint him, and only gives his consent to the Chief Justice to request a
former judge to sit and act as a judge of the High Court. Thus, the
process of appointment under Clause (1) of Article 217 does not apply
to him. This is also the reason why while dealing with the aspect of
7 (2011) 5 All LJ 455 (FB).
11
monetary emoluments of an ad hoc judge, it has been stated that the
former judge will be entitled to such allowances as the President may by
order determine though he shall have all the jurisdiction, powers, and
privileges but will not otherwise be deemed to be a judge of that High
Court.
The Challenge Before the Judiciary
20. 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, as we have already mentioned. 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. Without endeavouring to blame anyone, a ground reality
remains that there are manifold reasons for the same.
12
21. The present system of appointments as envisaged by the
Constitution and as elucidated in the Collegium system makes it clear
that the first step is a recommendation from that High Court by a
collegium of the three senior-most judges presided over by the Chief
Justice of the High Court. This process in turn requires wide
consultation by the Chief Justice of the High Court to identify the
requisite talent, so as to make the recommendations. Contrary to some
portrayed beliefs as if this is an extremely subjective system, every
Chief Justice is actually required to solicit names from different sources
whether it be sitting judges, retired judges, or prominent members of the
Bar. It is from this pool of talent that he selects, after a discussion before
the collegium, the most suitable candidates. It is thus of utmost
importance that the flow of recommendations continues for the
appointment process to work successfully. The vacancies existing and
arising are always known, as a judge demits office in the High Court on
his 62nd birthday. The only exception can be an unforeseen eventuality
or an elevation to the Supreme Court of India. Thus, every endeavour
has to be made to see that the recommendations are made well in
advance while maintaining a balance between recommendations from
the Bar and the subordinate judiciary, about six months in advance as
per norms which were thought to be the appropriate time period within
13
which the whole process of appointment ought to be concluded. This
aspect has been emphasized by us in another connected matter, i.e.,
TP(C) No. 2419/2019.
22. We may also note that on the basis of talent available; considering
that the age profile for elevation from the Bar is between 45 to 55 years,
there may be situations where at one go all recommendations against
vacancies may not be possible to be made. However nothing prohibits -
or rather the exigencies of the appointment process requires -
recommendations to be periodically made without unnecessarily waiting
for the outcome of the first set of recommendations. If this continuing
pipeline operates and even if some recommendations fall by the
wayside, over a reasonable period of time the vacancies can be filled up.
The current situation of vacancies, especially in some of the larger
courts with very few recommendations in the pipeline seems to be the
genesis of this problem.
23. The data placed before us, as drawn from the National Judicial
Data Grid (“NJDG”) shows that five (5) High Courts alone are
responsible for 54% of the pendency of over 57,51,312 cases – the
High Courts of Allahabad, Punjab & Haryana, Madras, Bombay, and
Rajasthan. The Madras High Court has among the highest arrears in the
country of 5.8 lakh cases despite having fewer vacancies than most
14
other High Courts (i.e., 7%). This does not take away from the
requirement of appointing ad hoc Judges but supports the view that even
if the existing vacancies are few, a situation may arise requiring the
expertise of experienced Judges to be appointed as ad hoc Judges. On
the other hand, Calcutta High Court has one of the highest vacancies of
regular appointments (44%) but less than half the arrears as compared to
Madras (2.7 lakh cases). In such a scenario, it is apparently the absence
of strength of the Judges which may be responsible for creating the
arrears and, thus, giving rise to another scenario for appointment of ad
hoc Judges. In Punjab & Haryana High Court, which has a vacancy
problem, the arrears have more than doubled over the last six years.
The NJDG data shows that 56.4% pending cases were filed within the
past five years whereas 40% of the pending cases were filed between 5
to 20 years ago. The primary purpose of appointing ad hoc Judges is to
deal with the latter group of cases that have been pending for over five
years. The table below, put on record by Senior Advocate Mr. Datar
shows the percentage break-up of cases pending before High Courts for
different periods of time as on 04.04.2021:
Particulars Civil % Criminal % Total %
0 to 1
years
622267 15.09 333345 20.49 955612 16.62
1 to 3
years
1054504 25.57 427302 26.27 1481806 25.76
15
3 to 5
years
676249 16.4 221226 13.6 897475 15.6
5 to 10
years
870536 21.11 296231 18.21 1166767 20.29
10 to 20
years
716419 17.37 289887 17.82 1006306 17.5
20 to 30
years
109517 2.63 41916 2.63 151433 2.63
Above 30
years
75047 1.82 16866 1.04 91913 1.6
24. We may only emphasize that one of the most important
administrative functions of the Chief Justice of the High Court is to
identify suitable candidates for elevation as judges of the High Court
and make recommendations in turn. The pipeline of recommendation of
Judges has to be kept flowing so as to cover vacancies.
25. Once the recommendation is made, opinions of State
Governments are solicited as also the input from the Intelligence Bureau
(“IB”). The recommendations are then processed by the Central
Government in all manners, before they are put up to the collegium of
the Supreme Court of India. This is another area of some concern as
there have been many cases which have remained pending for long
periods of time - though in view of certain queries posed in these
judicial proceedings, the situation has now improved. We may only say
that in normal circumstances, the total time period before names are
forwarded to the Supreme Court collegium should not exceed four
16
months after the recommendations are made by the collegium of the
High Court.
26. The Supreme Court collegium, which is the first three judges,
thereafter bestows its consideration on these names after obtaining the
opinions of the consultee judges. Those names which find approval of
the collegium are then recommended for appointment to the Union of
India. At that stage, the Government either proceeds to appoint the
judges or it may have some reservations, in which case it would be
within their right to return the recommendations with the reservations
they have over the appointment. On reconsideration, if the
recommendation is reiterated, in terms of the prevalent legal position,
the appointment has to be made. The delays in this is a matter of
concern as the recommendation of the collegium should not remain
pending for a long period of time. The aforesaid process should be
completed at the earliest. We may note that in some of the courts it is a
challenge to persuade competent and senior lawyers who may have
large practices to accept the position of the judge, and the pendency of
their names for a long period of time does little to encourage them.
27. The fact remains that the aforesaid process has not resulted in
filling up of vacancies for many years. It is not as if the vacant posts are
17
a small fraction, as we have noticed that they have been hovering
around the figure of 40% vacancies.
28. Having sketched out the aforesaid process, two questions arise :
1) how to make this process more efficacious; and
2) till the vacancies are filled up, what is it that can support a quicker
adjudicatory process?
29. The latter undoubtedly requires more number of judges and thus
the present debate has arisen for the purposes of utilization of the
existing Article 224A of the Constitution to appoint ad hoc judges in the
context of a large number of existing vacancies and pending arrears.
Memorandum of Procedure:
30. The Union of India vide additional affidavit dated 13.04.2021 had
placed before us a Memorandum of Procedure (“MoP”), which was
prepared in the year 1998 in pursuance to the judgment of the Supreme
Court in Supreme Court Advocate-on-Record Association v. Union of
India8
(Second Judges case) read with the advisory opinion rendered in
Special Reference No.1/19989
for “attendance of retired Judges at
sittings of High Courts.” It is the say of the Union of India that the
appointment of retired Judges under Article 224A should be a
8 (1993) 4 SCC 441
9 (1998) 7 SCC 739
18
collaborative process between the Executive and the Judiciary and the
procedure prescribed in para 24 may be followed till it is amended. The
relevant paragraph of the MoP reads as under:
“24. Under Article 224A of the Constitution, the Chief Justice of
a High Court 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 of that State. Whenever, the necessity for such
an appointment arises, the Chief Justice of India will after
obtaining the consent of the person concerned, communicate to
the Chief Minister of the State the name of the retired Judge and
the period for which he will be required to sit and act as Judge of
the High Court. The Chief Minister will, after consultation with
the Governor, forward his recommendation to the Union Minister
of Law, Justice and Company Affairs. The Union Minister of
Law, Justice and Company Affairs would then consult the Chief
Justice of India in accordance with the prescribed procedure. On
receipt of CJI’s advice, the same would be put up to the Prime
Minister, who will then advise the President as to the person to be
appointed to it and act as a Judge of the High Court. As soon as
the President gives his consent to the appointment, the Secretary
to the Government of India in the Department of Justice will
inform the Chief Justice of the High Court and the Chief
Minister(s) and will issue the necessary notification in the Gazette
of India.”
31. We may notice that the subsequent endeavour to introduce the
National Judicial Appointments Commission (‘NJAC’) through a
constitutional amendment could not withstand the constitutional
challenge in Supreme Court Advocates-on-Record Association & Anr. v.
Union of India (NJAC case)10
. In this, it was observed that the process
of amendment of the MoP could be finalised by the Executive in
10 (2016) 5 SCC 1
19
consultation with the Chief Justice of India. In this behalf, the final
view of the Judiciary was sent after discussion and there is no change in
the aforesaid. The MoP has been circulated to the Chief Justices of the
High Courts.
Law Commission Reports
32. The path we seek to traverse is supported by the Law
Commission Reports. In fact, the 124th report of the Law Commission
delivered in 1988 dealt with the aspect that a fresh look was required for
High Court arrears. In that context, it has been recognized that retired
judges have several decades of adjudicatory experience, and their talents
could be utilized to dispose of mounting arrears. On account of their
experience, they would be quick in disposing cases and being
unburdened with administrative or admission work, they could spend
their entire time hearing old matters. Thus, the appointment of retired
judges as ad-hoc judges was seen as a part of a "multipronged attack"
on arrears, and was strongly recommended.
33. This is not a first time that this aspect was noted. The 79th Report
of the Law Commission of 1979 had suggested recourse to this Article
to sub-serve the said objective. We may, however, notice that in 245th
Report of 2014, some concerns were expressed about this process on
20
account of the appointment being for a short period and the
accountability in the functioning and performance of ad-hoc judges.
34. We may notice that in the 188th Report of the Law Commission
of 2003, that in the interest of clearing arrears in the High Court in
various types of cases, including criminal matters, it was felt that it was
the need of the hour to make appointments under Article 224A of the
Constitution. The concern was to bring the arrears within manageable
proportions.
Some other views
35. In the recently published treatise, a view had been expressed that
one great advantage of appointing ad-hoc judges under Article 224-A is
that it provides for a ready-made pool of known judicial talent which
can be relied upon to be competent, clean and efficient. This can be an
effective weapon to deal with the disposal of forgotten and pending
cases, more so in the context of inordinate delay in fresh judicial
appointments.11
36. In the Chief Justices’ Conference held on 22nd and 23rd April
2016, a resolution was adopted dealing with filling up of vacancies in
11 A. M. Singhvi, “Beating the Backlog Reforms in Administration of Justice in
India,” in S. Khurshid et. al., (eds.) Judicial Review- Process, Powers, and Problems
(Essays in Honour of Upendra Baxi), (Cambridge University Press 2020), page 53.
21
High Courts and to address the problem of arrears in criminal and civil
cases de hors Article 224A where it was perceived to be a course to
follow. The Resolution states as under:
"Resolved further that, keeping in view the large pendency of
civil and criminal cases, especially criminal appeals where
convicts are in jail and having due regard the recommendation
made by the 17th Law Commission of India in 2003, the Chief
Justices will actively have regard to the provisions of Article
224A of the Constitution as a source for enhancing the strength of
Judges to deal with the backlog of cases for a period of two years
or the age of sixty five years, whichever is later until a five plus
zero pendency is achieved."
Article 224A earlier recourse:
37. We have already noticed that Article 224A has largely been a
dormant provision with only three recorded instances of its invocation.
Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as
an ad hoc Judge on 23.11.1972 after he had demitted office on 2.2.1971.
His appointment was for a period of one year or till the disposal of
election petitions entrusted to him, whichever was earlier. Thus, it was
with a specific purpose.
38. Justice P. Venugopal of the Madras High Court was a Judge for a
short period of less than three years and close to his retirement, he was
appointed to a Commission of Inquiry to inquire into certain incidents
that took place in Coimbatore town on 23.7.1981 and again appointed to
22
a one-man commission to inquire into incidents of communal riots by
order dated 22.3.1982. He was appointed to the post of ad hoc Judge in
the year 1982 and yet again his term was renewed for a period of one
year from 19.8.1983.
39. Most recently in the year 2007, Justice O.P. Srivastava was
appointed as an ad hoc Judge in the Allahabad High Court. He was one
of the Members of the Special Bench constituted for hearing of the
Ayodhya matter with the avowed object of facilitating continued and
continuous hearing of the matter.
The Challenge Ahead:
40. We have little doubt that challenge of mounting arrears and
existing vacancies requires recourse to Article 224A of the Constitution
to appoint ad-hoc judges which is a ready pool of talent, (of course
subject to their concurrence) as a methodology especially for clearing
the old cases. The existing strength of permanent and additional judges
can be utilized for current and not so old cases. The ad-hoc judges are
absolved even from the administrative responsibilities. They can
concentrate on old cases which are stuck in the system and may require
greater experience. For example, it is often perceived that a Regular
23
Second Appeal is an area of concern and the more experienced judges
are able to attend to this area with more promptness.
41. 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.
42. We are unable to accept the plea of the learned Attorney General
that though the Government of India may not have any in principle
opposition to the aforesaid, first the existing vacancies should be filled
in. In our view, this would be a self-defeating argument because the
very reason why at present Article 224A has been resorted to is nonfilling up of vacancies and the mounting arrears. We may, however,
hasten to add that the objective is not to appoint ad-hoc judges instead
of judges to be appointed to the regular strength of the High Court
(apprehension expressed by Mr. Vikas Singh, Senior Counsel, President
of the Supreme Court Bar Association). The very provision makes it
clear that it does not in any way constrain or limit the regular
appointment process and consent of the retired judge is sought to sit and
act as a judge of the High Court. One may say that this largely a
transitory methodology till all the appointment processes are in place,
24
though that may not be the only reason to take recourse to the aforesaid
Article.
43. We also have no doubt that we would not like to encourage an
environment where Article 224A is sought as panacea for inaction in
making recommendations to the regular appointments. In order to
prevent such a situation, we are of the view that certain checks and
balances must be provided so that Article 224A can be resorted to only
on the process having being initiated for filling up of the regular
vacancies and awaiting their appointments. We are thus of the view that
there should not be more than 20% of the vacancies for which no
recommendation has been made for this Article to be resorted to. We
put this figure not out of the blue but looking to the entire scenario
where sometimes it may be difficult to find the requisite talent at a
particular stage which may have to await some time period. However,
certainly, it cannot be countenanced that no or very few
recommendations are made for a large number of vacancies by resorting
to Article 224A.
44. We may have to turn to the aspect of the process to be followed
for making present appointments. The Constitution of India did not
provide for a collegium system. This is an aspect which emerged from
25
the cases of SP Gupta v. Union of India,
12 Supreme Court Advocates
on Record v. Union of India,
13 and in Re: Special Reference 1 of
199814 and its modified forms has remained in existence since then. The
endeavour of the Government to bring in the National Judicial
Appointments Commission did not pass the muster of the constitutional
mandate and was struck down in Supreme Court Advocates-on-Record
Association and Anr. v. Union of India.
15
Thus, the collegium of the
Supreme Court has an important role to play in the appointment of
judges of the High Court. In the aforesaid conspectus, the exercise by
the Chief Justice of the High Court, the authority vested under Article
224A of the Constitution would require a prior consent from the judge
concerned, and that recommendation in turn has to be routed through
the collegium of the Supreme Court. Of course, the previous consent of
the President of India (as advised) is necessary - but looking to the very
nature of this appointment, which is of a retired judge who for his
judicial appointment has gone through the complete process, time
period of maximum three months is more than sufficient to carry the
process through all stages. This in turn would be facilitated if the Chief
12 (1982) 2 SCR 365.
13 (1993) 4 SCC 441.
14 AIR 1999 SC 1.
15 2015 11 SCALE 1.
26
Justice of the High Court takes the initial steps at least three months in
advance so that there is no unnecessary delay in this regard.
45. We may add here that we are quite conscious of the difference in
the manner of appointment of permanent and additional Judges, and ad
hoc judges in the High Court. Thus, two scenarios of appointment of
Judges arise under Article 217 of the Constitution of India and the
appointment has to be by the President by warrant under his hand and
seal (Article 224 refers to the appointment of Additional and acting
Judges). On the other hand, the appointment of a retired Judge as an ad
hoc Judge of the High Court under Article 224A of the Constitution
albeit forming part of the same Chapter V of the Constitution of India
begins with a non obstante clause and provides for the Chief Justice of a
High Court to request any person who has held the office of a Judge of
that Court or any other High Court to sit and act as a Judge of the High
Court for that State. On the consent of the President being granted, the
Secretary in the Government of India, Department of Justice is to
inform the Chief Justice of the High Court and to issue necessary
notification in the Gazette of India as per the MoP. For clarity we may
add that while the judicial pronouncements of the Supreme Court are
law declared by this Court under Article 141 of the Constitution of
India, the MoP has been framed under an administrative discussion and
27
cannot be said to be law declared by this Court. It can always be
varied.
46. In carrying out the aforesaid exercise, the Chief Justice of the
High Court would have to bestow his consideration on the aspect as to
who would be the suitable judge to be appointed as an ad-hoc judge and
what is the time period for which the person has to be so appointed.
This in turn will depend on the data of pendency of the different nature
of cases, and the expertise of the judge especially in the areas where
there is a large volume of pendency - as the objective is to clear the old
cases which are stuck in the system. Such consideration of objective
criteria becomes necessary to have transparency in the system.
47. In the aforesaid context, we called upon various senior counsels
assisting this Court to look into this matter and Mr. Arvind Datar,
learned senior counsel to coordinate it so that we can have common
suggestions before us to assist us in formulating the modalities for
recourse to Article 224A.
48. On the aspect of allowances as admissible to an ad-hoc judge to
be determined by the President of India, it is trite to say that despite the
voluntary nature of work no one would like to accept allowances less
than what are admissible to a sitting judge. Thus, we are of the view that
the same monetary benefits and privileges should be payable/available
28
to an ad-hoc judge as admissible to a judge minus the pension. That can
be the only methodology we consider appropriate to follow.
49. A Common theme of the various suggestions placed before us -
whether by Mr. Datar, the petitioners or other counsels - is that there is a
definitive need for activating the provision. There are differences of
perception with respect to different aspects such as, the trigger point to
activate the provision, suggestion of an embargo situation, the
methodology of appointment, the role of ad hoc Judges, age limit,
tenure of appointment, etc. We have, thus, heard learned counsels on
these various aspects. A common need has been felt to give guidelines
to facilitate some element of uniformity in taking recourse tothis
dormant provision. It is also a common ground, with which we agree,
that while laying down guidelines, a periodic review of this experiment
will be required and there may be occasions to suitably modify the
guidelines which we propose to lay down. Thus, it would not be
appropriate to close the present proceedings but instead a concept of
continuing mandamus would be appropriate in the present proceedings
to work out the most effective method of taking recourse to Article
224A of the Constitution.
50. The principle of continuing mandamus forms part of our
Constitutional jurisprudence and the term was used for the first time in
29
Vineet Narain v. Union of India16. The practice of issuing continuing
directions to ensure effective discharge of duties was labelled as a
“continuing mandamus”. 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.
51. We have given deep thought to the slightly different perspectives
placed before us by way of affidavits by the different High Courts and
Union of India. While emphasising that recourse to Article 224A is the
necessity of the day, and without inhibiting the expanse of the powers
conferred on the Chief Justice of the High Court as per the Constitution,
it would be in the fitness of things to lay down some guidelines for
assistance of the Chief Justices of the High Courts and to make the
provision a ‘live letter’.
52. We have, in this behalf, considered the various aspects touched
upon in the additional affidavit of the Union of India dated 13.4.2021.
In fact, the response note of Mr. Datar is based on these different
16 (1998) 1 SCC 226
30
parameters and is intended to facilitate a cogent flow to the guidelines
sought from us. We may notice that it is a common case that the present
proceedings are not adversarial but a method to make the provisions of
Article 224A into a practical and working arrangement. We now
proceed to issue the guidelines.
Guidelines:
i. Trigger Point for activation:
53. The discretion of the Chief Justice of the High Court under
Article 224A is not constrained but as stated, some general guidelines
are required to be laid so that power conferred under the said provision
is exercised in a transparent manner. The Trigger Point cannot be
singular and there can be more than one eventuality where the it arises –
a. If the vacancies are more than 20% of the sanctioned strength.
b. The cases in a particular category are pending for over five
years.
c. More than 10% of the backlog of pending cases are over five
years old.
d. 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.
31
e. 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.
ii. Embargo Situtation:
54. We have already observed that the recourse to Article 224A is not
an alternative to regular appointments. In order to emphasise 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.
55. In this behalf we may take note of the data placed before us
which would suggest that there are only ten High Courts having fewer
than 20% vacancies as on 1.4.2021; seven High Courts having fewer
than 10% vacancies in permanent appointments but then there may be
additional Judges and there are cases which are in the pipeline. Thus,
the parameter we have adopted is that, at least, the recommendations
should have been made leaving not more than 20% vacancies in order to
take recourse to Article 224A.
32
iii. Pre-recommendation process:
a. Past performance of recommendees in both quality and
quantum of disposal of cases should be factored in for
selection as the objective is to clear the backlog.
b. The 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. 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.
iv. Methodology of Appointment:
56. We have already noticed that para 24 of the MoP lays down a
procedure for appointment under Article 224A of the Constitution. We
have also noticed that it is not law laid down in this behalf under Article
33
141 of the Constitution but as a first step it may be more appropriate to
follow this procedure laid down in para 24 of the MoP to see the
progress made and impediments, if any. We may, however notice that
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.
v. Time to complete the process:
57. The requirement that recommendations should be made six
months in advance by the Chief Justice of the High Court emanates
from the concept that the said period should be required to complete the
process in case of a regular appointment of a Judge under Article 217 or
224 of the Constitution of India. In view of number of aspects not
required to be adverted to for appointment under Article 224A we are of
the view that 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.
vi. Tenure of Appointment:
58. The tenure for which an ad hoc Judge is appointed may vary on
the basis of the need but suffice to say that in order to give an element
34
of certainty and looking to the purpose for which they are appointed,
generally the appointment should be for a period between two to three
years.
vii. Number of Appointments:
59. We are also of the view that, at least, for the time being dependent
on the strength of the High Court and the problem faced by the Court,
the number of ad hoc Judges should be in the range of two to five in a
High Court.
viii. Role of ad hoc Judges:
60. The primary objective being to deal with long pending arrears,
the said objective will be subserved by assigning more than five year
old cases to the ad hoc Judges so appointed. However, this would not
impinge upon the discretion of the Chief Justice of the High Court, if
exigencies so demand for any particular subject matter even to deal with
the cases less than five years old, though the primary objective must be
kept in mind.
61. One of the issues raised is of constitution of Benches of an ad hoc
Judge and sitting Judge in matters to be heard by Division Bench and as
to who would preside. We are of the view that the Division Bench, at
present, may be constituted only of ad hoc Judges because these are old
35
cases which need to be taken up by them. We also make it clear that
because of the very nature of the profile and work to be carried out by
ad hoc Judges, it would not be permissible for an ad hoc Judge to
perform any other legal work whether it be advisory, of arbitration or
appearance.
ix. Emoluments and Allowances:
62. We have already discussed in the substantive part of the order that
the emoluments and allowances of an ad hoc Judge should be at par
with a permanent Judge of that Court at the relevant stage of time minus
the pension. This is necessary to maintain the dignity of the Judge as
also in view of the fact that all other legal work has been prohibited by
us in terms of the aforesaid guidelines.
63. We also make it clear that emoluments to be paid would be a
charge on the Consolidated Fund of India consisting of salary and
allowances. We may also clarify that it is a misconceived notion that
there will be an additional burden on the State Government if some
perquisites are made available to ad hoc Judges by the State
Government. The trigger for appointment of ad hoc Judges is the very
existence of vacancies and had these vacancies been filled in, the State
Government would have incurred these expenses anyhow. In any case
36
there is a limit placed on the number of ad hoc Judges and, thus, the
existence of vacancies actually results in the savings for the State
Government(s), which would otherwise be amount expended as their
allowances and perks.
64. We make it clear that when we refer to
allowance/perks/perquisites all benefits as are admissible to the
permanent/additional Judge(s) would be given to the ad hoc Judge(s).
For clarity we may say that as far as housing accommodation is
concerned, either the rent-free accommodation should be made
available or the housing allowance should be provided on the same
terms and conditions. For all practical purposes the ad hoc Judge would
receive the same emoluments, allowances and benefits as are admissible
to the permanent/additional Judges. We may note that the Second
Schedule, Part D of the Constitution of India stipulates the emoluments
and benefits that have to be conferred on the judges of the Supreme
Court and of the High Courts.
Conclusion:
65. 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. The
37
guidelines cannot be exhaustive and that too at this stage. If problems
arise, we will endeavour to iron them out. We must set aside
apprehensions, if any, to chart this course and we are confident that
there will be a way forward.
66. In view of the requirements of a continuous mandamus to see
how a beginning has been made, list after four months calling upon the
Ministry of Justice to file a report in respect of the progress made.
………………………….CJI
[S.A. BOBDE]
…………………………….J.
[SANJAY KISHAN KAUL]
…………………………….J.
[SURYA KANT]
NEW DELHI.
APRIL 20, 2021.
