2021 Supreme(SC) 222

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., SANJAY KISHAN KAUL, SURYA KANT, JJ.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) - APPELLANT
VERSUS
UNION OF INDIA & ORS. – RESPONDENT
WRIT PETITION (C) NO. 1236 OF 2019
Decided on : 20-04-2021

IMPORTANT POINTS
(1) Appointment of ad hoc Judges in High Courts is need of the hour.
(2) Appointment of Judges in High Courts – Every endeavour has to be made to see that recommendations are made well in advance while maintaining a balance between recommendations from Bar and subordinate judiciary, about six months in advance as per norms which were thought to be appropriate time period within which whole process of appointment ought to be concluded.

Headnote:

(A) Constitution of India – Article 224A – Appointment of ad hoc Judges in High Courts – We have a docket explosion in our country and it is difficult for adjudication to take place within a reasonable period of time – This crisis situation must be tackled – Some innovation is always rule of game – We are faced with ground reality of almost 40% vacancies remaining in regular appointments (both permanent and additional judges) over last two years – A number of vacancies arising every year are barely filled in by fresh appointments – It remains an unfulfilled challenge to bring appointment process to such numbers as would be able to cover vacancies existing and arising – Without endeavouring to blame anyone, a ground reality remains that there are manifold reasons for the same – Present system of appointments as envisaged by Constitution and as elucidated in Collegium system requires wide consultation by Chief Justice of High Court to identify requisite talent, so as to make recommendations – A Judge demits office in High Court on his 62nd birthday – Only exception can be an unforeseen eventuality or an elevation to Supreme Court of India – Every endeavour has to be made to see that recommendations are made well in advance while maintaining a balance between recommendations from Bar and subordinate judiciary, about six months in advance as per norms which were thought to be appropriate time period within which whole process of appointment ought to be concluded. (Paras 20 and 21)

(B) Constitution of India – Article 224A – Appointment of ad hoc Judges in High Courts – Challenge of mounting arrears and existing vacancies requires recourse to Article 224A of Constitution to appoint ad-hoc Judges which is a ready pool of talent, (subject to their concurrence) as a methodology especially for clearing old cases – Existing strength of permanent and additional Judges can be utilized for current and not so old cases – Ad-hoc Judges are absolved even from administrative responsibilities – They can concentrate on old cases which are stuck in system and may require greater experience – No reason why there should be an unending debate of taking recourse to Article 224A when such a provision exists in Constitution – It should not be made a dead letter, more so when need is so pressing – Provision does not in any way constrain or limit regular appointment process and consent of retired Judge is sought to sit and act as a Judge of High Court – 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 regular vacancies and awaiting their appointments – There should not be more than 20% of vacancies for which no recommendation has been made for this Article to be resorted to – Elaborate Guidelines issued. (Paras 40, 41, 42, 43, 53 to 65)

Facts of the case:

Intent of our order today is to activate a dormant provision of Constitution of India – Article 224A – for appointment of ad hoc Judges to deal with the unprecedented situation arising from 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 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.

Findings of Court:

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.

Result : Directions issued.