Explained| Ad Hoc Judges In High Courts : Procedure For Appointment & Tenure

To tackle the mounting pendency of criminal appeals, the Supreme Court in a significant order today (January 30) relaxed the conditions of appointment of ad hoc judges in High Courts. The Court suspended the condition imposed in its 2021 judgment as per which ad hoc appointments can be made only if the vacancies in the High Court are more than 20% of the sanctioned strength. In 2021, the bench of then Chief Justice of India SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant laid down guidelines to appoint ad hoc judges in the case of Lok Prahari vs Union of India. Lok Prahari, an NGO, had approached the Top Court through a PIL filed under Article 32 seeking the invocation of Article 224A to tackle the problem of mounting case arrears in High Courts. Article 224A deals with the appointment of retired High Court Judges as ad hoc judges of the High Court.An ad hoc judge is a retired judge who is appointed on a temporary basis for a specific vacancy or purpose only for a limited period of time. In the 2021 judgment, the Court laid down the conditions and procedure for appointing ad-hoc judges. Procedure For Appointment Paragraph 24 of the Memorandum of Procedure for the appointment of judges deals with the process under Article 224A. While saying that the MoP has no force of a 'law' laid down by the Court under Article 141, the 2021 judgment said that as a starting point, this process can be followed. The MOP was prepared in the year 1998 in pursuance of the judgment of the Supreme Court in Supreme Court Advocate-on-Record Association v. Union of India (Second Judges case).Under this, the Supreme Court collegium is not involved in the appointment of ad hoc judges. The Chief Justice of the concerned High Court (1) takes consent of the retired judge; (2) the CJ then informs the Chief Minister of the State about the recommended name and period of appointment; (3) the Chief Minister forwards the recommendation to the Governor ; (4) Governor communicates the same to the Union Minister of Law and Justice; (5) The Union Law Minister in turn consults the CJI for his advise; (6) the advice and recommendation are then sent to the Prime Minister who renders advice to the President of India; (7) the recommendations are confirmed upon the official consent of the President; (8) this is followed by official notification in the Gazette of India by the Chief Minister of the State. The tenure of appointment would be for a period between two to three years. When Can Appointments Be Made? In Lok Prahari, the Court identified the following 'trigger points' of when a situation may necessitate the requirement of ad-hoc judges in particular High Court. The Trigger Point cannot be singular and there can be more than one eventuality where it arises These are : 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. 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 moreHowever, as per the today's order of the bench led by CJI Sanjiv Khanna, condition (a) has been kept in abeyance.How Many Ad-hoc Judges Can Be Appointed? Today's order clarified that each High Court can appoint around 2-5 ad-hoc judges, provided the number does not exceed 10% of the sanctioned strength of the concerned High Court. Role of ad-hoc judgesThe primary objective is 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, the Court in Lok Prahari clarified that 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 cases less than five years old, though the primary objective must be kept in mind.Notably, under paragraph 61, the Court held that a division bench only of ad-hoc judges can also be constituted to hear old cases and it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance. As per the latest direction, the bench led by CJI Sanjiv Khanna has also stayed the operation of Paragraph 61. Today's order clarified that ad hoc judges would be sitting along with senior judges in division benches which hear criminal appeals.Emoluments And AllowancesThe 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 because all other legal work has been prohibited.The ...

Explained| Ad Hoc Judges In High Courts : Procedure For Appointment & Tenure

Anmol Kaur Bawa

Tags