Context: To address the growing backlog of criminal cases, the Supreme Court has allowed High Courts to appoint retired judges on an ad-hoc basis. SC relaxed a rule set in Lok Prahari which had limited such appointments to High Courts where judicial vacancies exceeded 20% of the sanctioned strength.
Relevance of the Topic:Prelims: Key facts about Ad-hoc judges in High Court.
Appointment of Ad Hoc Judges
- Article 224A: The Chief Justice of a High Court for any State 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 for that State.
- Entitlements:
- They are entitled to allowances as determined by the President’s order.
- They have all the jurisdiction, powers, and privileges of a Judge of a sitting High Court; but are not “deemed” as such.
- Both the retired judge and the President of India are required to consent to the appointment.
Why is there a need to appoint Ad-hoc Judges?
- Pendency of criminal cases: Huge pendency in several high courts, in Allahabad High Court there are 63,000 criminal appeals pending. Similarly, 20,000, 21,000, 8,000 and 21,000 criminal cases are pending in high courts at Karnataka, Patna, Rajasthan and the Punjab and Haryana respectively.
- Pendency of posts: Nearly 40% vacancies across all High Courts.
- Delay in appointment Delay in appointment of High Court judges even after the recommendation of collegium.
- Law Commission recommendation: Law Commission reports published in 1979, 1988, and 2003 have suggested that temporarily appointing retired judges who already have decades of experience is a viable solution to tackle the mounting backlog of cases.
Advantages of appointing Ad-hoc judges
- Experienced judges: Retired judges are experienced judges with proven track records.
- Speedier appointment: As there is no need for the Intelligence Bureau and other agencies to check in appointments because the person has been a judge before.
- Reduce pendency: The ad-hoc judges can be assigned more than five-year-old cases.
Issues and concerns:
- Inaction in regular appointment: Appointments under Article 224A could encourage “inaction in making recommendations” for regular judge appointments.
- Administrative Challenges: Coordinating between sitting and ad-hoc judges and ensuring seamless integration into the operations of the High Court.
- Rare usage: It is as such a dormant provision of the Constitution and has only been used thrice in the past, with no recorded usage since 2021.
Procedure for the appointment of Ad hoc Judges
- Initiation:
- The Chief Justice of a High Court will (after 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.
- State government recommendation:
- The Chief Minister will, after consultation with the Governor, forward his recommendation to the Union Minister of Law, Justice, and Company Affairs.
- Consultation with CJI:
- The Union Minister of Law, Justice and Company Affairs would then consult the Chief Justice of India.
- Final Approval: 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.
- In the Lok Prahari v. Union of India case (2021), the Supreme Court held that this recommendation “has to be routed through the collegium of the Supreme Court”. This collegium includes the CJI and the two senior most judges of the Supreme Court.
- As soon as the President gives his consent to the appointment, the Department of Justice will issue the necessary notification in the Gazette of India.
Guidelines given in Lok Prahri v Union of India to trigger appointment Under Article 224A:
- If the vacancies are more than 20% of the sanctioned strength.
- The cases in a particular category are pending for over five years.
- More than 10% of the backlog 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.
- 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.
What does the latest SC order say?
- The SC has set aside the condition laid down in Lok Prahari, which permitted the appointment of ad-hoc judges only when judicial vacancies exceeded 20% of the sanctioned strength.
- It further ruled that ad-hoc judges can only hear criminal appeals.
- The number of ad-hoc judges cannot exceed 10% of a High Court’s sanctioned judicial strength, meaning each High Court can have only 2 to 5 such appointments.