'If Vacancies Are More Than 20% Sanctioned Strength' : Supreme Court Lays Down 5 Trigger Points To Appoint Ad-Hoc Judges In High Courts

The Supreme Court has laid down guidelines for the appointment of ad-hoc judges in High Courts under Article 224A of the Constitution of India.Article 224A enables a Chief Justice of a High Court, with the previous consent of the President, to request a former High Court judge to "sit and act as a judge" of the High Court to hear cases. The provision has been invoked very rarely in the judicial history of India.A bench comprising the Chief Justice of India SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant has issued the following guidelines for the invocation of Article 224A in the case Lok Prahari vs Union of India.While agreeing that the discretion of the High Court Chief Justice cannot be curtailed, the bench said that certain general guidelines are needed so that the power under Article 224A is exercised in a transparent manner.Trigger point to activate Article 224AThe Supreme Court has laid down 5 trigger points which can activate the process under Article 224A.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.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 moreAd-hoc appointments cannot be a substitute for regular appointments; recommendations must be made for at least 20% regular vacancies to invoke Article 224AThe Supreme Court emphasized that ad-hoc appointments cannot be a substitute for regular appointments. The objective is not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court."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", the court said in the judgment.In order to prevent such a situation, the Court held 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. There should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to."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 Article224A would not arise", the Court observed.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 sometime 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.Methodology of appointmentThe Court noted that paragraph 24 of the Memorandum of Procedure for the appointment of judges deal 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 bench said that as a starting point, this process can be followed.As per this procedure, the Supreme Court collegium is not involved in the appointment of ad-hoc judges. Paragraph 24 of the MoP is as follows :The Court also held that reference to IB or other agencies will not be required in the case of ad-hoc judges.Time to complete the processThe Court observed that a period of three months would be sufficient to complete the appointment process.Tenure of appointmentGenerally the appointment should be for a period between two to three years.Number of ad-hoc judgesThe number of ad hoc Judges should be in the range of two to five in a High Court.Role of ad-hoc judgesThe 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 Vacancies Are More Than 20% Sanctioned Strength' : Supreme Court Lays Down 5 Trigger Points To Appoint Ad-Hoc Judges In High Courts

Manu Sebastian

Ad-hoc appointments are intended to hear old pending cases; such appointments cannot be a substitute for regular appointment.

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