LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) versus UNION OF INDIA & ORS. on 20 April 2021

LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N.SHUKLA IAS (RETD.)

v.

UNION OF INDIA & ORS.

(Writ Petition (C) No. 1236 of 2019)

APRIL 20, 2021

[S. A. BOBDE,CJI, SANJAY KISHAN KAUL ANDSURYA KANT, JJ.]

Constitution of India:

Art. 224A – Appointment of retired judges at sittings of HighCourts – Pendency of 57 lakhs cases in the High Courts alongwith consistent ratio of vacancies of almost 40 per cent – Held:Recourse to Art. 224A by appointment of ad hoc judges needed – Itwould provide a ready-made pool of known judicial talent to dealwith the disposal of pending old cases – Certain checks and balancesto be provided for resorting to Art. 224A – Guidelines on aspectssuch as, the trigger point to activate the provision, suggestion of anembargo situation, pre-recommendation process, the methodologyof appointment, time to complete the process, tenure ofappointment, the number of appointments, the role of ad hoc Judges,emoluments and allowances, etc. to be arrived so as to facilitatesome element of uniformity – Since periodic review would berequired to suitably modify the guidelines proposed, concept ofcontinuing mandamus would be appropriate – Thus, issuance ofguidelines for invocation of Art. 224A.

Arts. 217, 224 and 224A - Appointment of permanent andadditional Judges, and ad hoc judges in the High Court – Processto be followed – Explained.

Art. 224 – Objective of – Explained.

Art. 224A – Historical perspective – Explained.

Constitutional jurisprudence – Continuing mandamus –Concept of – Held: “Continuing mandamus” is a practice of issuingcontinuing directions to ensure effective discharge of duties – Unlikea writ remedy, a continuing mandamus is an innovative procedure

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318SUPREME COURT REPORTS

Anot a substantive one which allows the Court an effective basis toensure that the benefits of a judgment can be enjoyed by the right-bearers, and its realisation is not hindered by administrative and/orpolitical recalcitrance – It is a means devised to ensure that theadministration of justice translates into tangible benefits.

BIssuing guidelines and further listing the matter, the CourtHELD: 1.1 It is trite to say that there is a docket explosionin our country and that it is difficult for adjudication to take placewithin a reasonable period of time. This crisis situation must betackled. Some innovation is always the rule of the game. In theCpresent context, maybe a slightly different view has to be takenin respect of the avowed purpose of Article 224A of theConstitution of India providing for ad hoc judges. It is said so asthis Court is faced with the ground reality of almost 40% vacanciesremaining in the regular appointments (both permanent andadditional judges) over the last two years. A number of vacanciesDarising every year are barely filled in by fresh appointments. Thus,it remains an unfulfilled challenge to bring the appointmentprocess to such numbers as would be able to cover the vacanciesexisting and arising. [Para 20][336-A-C]

1.2 The present system of appointments as envisaged byEthe Constitution and as elucidated in the Collegium system makesit clear that the first step is a recommendation from that HighCourt by a collegium of the three senior-most judges presidedover by the Chief Justice of the High Court. This process in turnrequires wide consultation by the Chief Justice of the High CourtFto identify the requisite talent, so as to make therecommendations. Contrary to some portrayed beliefs as if thisis an extremely subjective system, every Chief Justice is actuallyrequired to solicit names from different sources whether it besitting judges, retired judges, or prominent members of the Bar.It is from this pool of talent that he selects, after a discussionGbefore the collegium, the most suitable candidates. It is thus, ofutmost importance that the flow of recommendations continuesfor the appointment process to work successfully. The vacanciesexisting and arising are always known, as a judge demits office inthe High Court on his 62[nd] birthday. The only exception can beH

an unforeseen eventuality or an elevation to the Supreme Courtof India. Thus, every endeavour has to be made to see that therecommendations are made well in advance while maintaining abalance between recommendations from the Bar and thesubordinate judiciary, about six months in advance as per normswhich were thought to be the appropriate time period within whichthe whole process of appointment ought to be concluded. [Para21][336-D-H]

1.3 On the basis of talent available; considering that theage profile for elevation from the Bar is between 45 to 55 years,there may be situations where at one go all recommendationsagainst vacancies may not be possible to be made. Howevernothing prohibits - or rather the exigencies of the appointmentprocess requires - recommendations to be periodically madewithout unnecessarily waiting for the outcome of the first set ofrecommendations. If this continuing pipeline operates and evenif some recommendations fall by the wayside, over a reasonableperiod of time the vacancies can be filled up. The current situationof vacancies, especially in some of the larger courts with veryfew recommendations in the pipeline seems to be the genesis ofthis problem. [Para 22][337-A-C]

1.4 One of the most important administrative functions ofthe Chief Justice of the High Court is to identify suitablecandidates for elevation as judges of the High Court and makerecommendations in turn. The pipeline of recommendation ofJudges has to be kept flowing so as to cover vacancies. Once therecommendation is made, opinions of State Governments aresolicited as also the input from the Intelligence Bureau. Therecommendations are then processed by the Central Governmentin all manners, before they are put up to the collegium of theSupreme Court of India. This is another area of some concern asthere have been many cases which have remained pending forlong periods of time - though in view of certain queries posed inthese judicial proceedings, the situation has now improved. Innormal circumstances, the total time period before names areforwarded to the Supreme Court collegium should not exceedfour months after the recommendations are made by the collegiumof the High Court. [Paras 24, 25][338-B-E]

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A1.5 The Supreme Court collegium, which is the first threejudges, thereafter bestows its consideration on these names afterobtaining the opinions of the consultee judges. Those names whichfind approval of the collegium are then recommended forappointment to the Union of India. At that stage, the Governmenteither proceeds to appoint the judges or it may have someBreservations, in which case it would be within their right to returnthe recommendations with the reservations they have over theappointment. On reconsideration, if the recommendation isreiterated, in terms of the prevalent legal position, theappointment has to be made. The delays in this is a matter ofCconcern as the recommendation of the collegium should notremain pending for a long period of time. The said process shouldbe completed at the earliest. In some of the courts it is a challengeto persuade competent and senior lawyers who may have largepractices to accept the position of the judge, and the pendency oftheir names for a long period of time does little to encourageDthem. The fact remains that the said process has not resulted infilling up of vacancies for many years. It is not as if the vacantposts are a small fraction, as it is noticed that they have beenhovering around the figure of 40% vacancies. [Paras 26, 27][338-E-H; 339-A]E1.6 There is little doubt that challenge of mounting arrearsand existing vacancies requires recourse to Article 224A of theConstitution to appoint ad-hoc judges which is a ready pool oftalent, (of course subject to their concurrence) as a methodologyespecially for clearing the old cases. The existing strength ofFpermanent and additional judges can be utilized for current andnot so old cases. The ad-hoc judges are absolved even from theadministrative responsibilities. They can concentrate on old caseswhich are stuck in the system and may require greaterexperience. The very provision makes it clear that it does not in any way constrain or limit the regular appointment process andGconsent of the retired judge is sought to sit and act as a judge ofthe High Court. One may say that this is largely a transitorymethodology till all the appointment processes are in place,though that may not be the only reason to take recourse to thesaid Article. [Para 40, 42][342-E-F; 343-B-C]H

1.7 This Court would not like to encourage an environmentwhere Article 224A is sought as panacea for inaction in makingrecommendations to the regular appointments. In order toprevent such a situation, certain checks and balances must beprovided so that Article 224A can be resorted to only on theprocess having being initiated for filling up of the regular vacanciesand awaiting their appointments. Thus, there should not be morethan 20% of the vacancies for which no recommendation hasbeen made for this Article to be resorted to. This figure is placedlooking to the entire scenario where sometimes it may be difficultto find the requisite talent at a particular stage which may have toawait some time period. However, certainly, it cannot becountenanced that no or very few recommendations are made fora large number of vacancies by resorting to Article 224A. [Para43][343-C-E]

1.8 The collegium of the Supreme Court has an importantrole to play in the appointment of judges of the High Court. Inthe said conspectus, the exercise by the Chief Justice of the HighCourt, the authority vested under Article 224A of the Constitutionwould require a prior consent from the judge concerned, and thatrecommendation in turn has to be routed through the collegiumof the Supreme Court. Of course, the previous consent of thePresident of India (as advised) is necessary - but looking to thevery nature of this appointment, which is of a retired judge whofor his judicial appointment has gone through the complete process,time period of maximum three months is more than sufficient tocarry the process through all stages. This in turn would befacilitated if the Chief Justice of the High Court takes the initialsteps at least three months in advance so that there is nounnecessary delay in this regard. [Para 44][344-A-C]

SP Gupta v. Union of India [1982] 2 SCR 365; SupremeCourt Advocates on Record v. Union of India (1993) 4SCC 441 : [1993] 2 Suppl. SCR 659; Re: SpecialReference 1 of 1998 AIR 1999 SC 1 : [1998] 2 Suppl.SCR 400; Supreme Court Advocates-on-RecordAssociation and Anr. v. Union of India 2015 11 SCALE1 – referred to.

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A1.9 There is difference in the manner of appointment ofpermanent and additional Judges, and ad hoc judges in the HighCourt. Thus, two scenarios of appointment of Judges arise underArticle 217 of the Constitution of India and the appointment hasto be by the President by warrant under his hand and seal (Article224 refers to the appointment of Additional and acting Judges).BOn the other hand, the appointment of a retired Judge as an adhoc Judge of the High Court under Article 224A of the Constitutionalbeit forming part of the same Chapter V of the Constitution ofIndia begins with a non obstante clause and provides for the ChiefJustice of a High Court to request any person who has held theCoffice of a Judge of that Court or any other High Court to sit andact as a Judge of the High Court for that State. On the consent ofthe President being granted, the Secretary in the Government ofIndia, Department of Justice is to inform the Chief Justice of theHigh Court and to issue necessary notification in the Gazette ofIndia as per the MoP. The MoP has been framed under anDadministrative discussion and cannot be said to be law declaredby this Court. It can always be varied. [Para 45][344-D-G]

1.10 In carrying out the said exercise, the Chief Justice ofthe High Court would have to bestow his consideration on theaspect as to who would be the suitable judge to be appointed asEan ad-hoc judge and what is the time period for which the personhas to be so appointed. This in turn will depend on the data ofpendency of the different nature of cases, and the expertise ofthe judge especially in the areas where there is a large volume ofpendency - as the objective is to clear the old cases which areFstuck in the system. Such consideration of objective criteriabecomes necessary to have transparency in the system. [Para46][344-G-H; 345-A-B]

1.11 On the aspect of allowances as admissible to an ad-hoc judge to be determined by the President of India, it is trite toGsay that despite the voluntary nature of work no one would liketo accept allowances less than what are admissible to a sittingjudge. Thus, the same monetary benefits and privileges shouldbe payable/available to an ad-hoc judge as admissible to a judgeminus the pension. That can be the only methodology it isconsidered appropriate to follow. [Para 48][345-C-D]H

1.12 A Common theme of the various suggestions placedis that there is a definitive need for activating the provision. Thereare differences of perception with respect to different aspectssuch as, the trigger point to activate the provision, suggestion ofan embargo situation, the methodology of appointment, the roleof ad hoc Judges, age limit, tenure of appointment, etc. A commonneed has been felt to give guidelines to facilitate some elementof uniformity in taking recourse to this dormant provision. It isalso a common ground, with which it is agreed, that while layingdown guidelines, a periodic review of this experiment would berequired and there may be occasions to suitably modify theguidelines which are proposed to be laid down. Thus, it wouldnot be appropriate to close the present proceedings but insteada concept of continuing mandamus would be appropriate in thepresent proceedings to work out the most effective method oftaking recourse to Article 224A of the Constitution. [Para49][345-E-G]

1.13 The principle of continuing mandamus forms part ofthe Constitutional jurisprudence and the term was used for thefirst time in Vineet Narain v. Union of India’s case. The practiceof issuing continuing directions to ensure effective discharge ofduties was labelled as a “continuing mandamus”. Unlike a writremedy, a continuing mandamus is an innovative procedure not asubstantive one which allows the Court an effective basis toensure 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 theadministration of justice translates into tangible benefits. [Para50][345-H; 346-A-B]

Vineet Narain v. Union of India (1998) 1 SCC 226 :[1997] 6 Suppl. SCR 595 – relied on.

1.14 While emphasising that recourse to Article 224A isthe necessity of the day, and without inhibiting the expanse ofthe powers conferred on the Chief Justice of the High Court asper the Constitution, it would be in the fitness of things to laydown some guidelines for assistance of the Chief Justices of theHigh Courts and to make the provision a ‘live letter’. It might benoticed that it is a common case that the present proceedings

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Aare not adversarial but a method to make the provisions of Art.224A into a practical and working arrangement. [Paras 51,52][346-C-D, E]

2. Guidelines:

i. Trigger Point for activation:B

The discretion of the Chief Justice of the High Court underArticle 224A is not constrained but as stated, some generalguidelines are required to be laid so that power conferred underthe said provision is exercised in a transparent manner. TheTrigger Point cannot be singular and there can be more than oneCeventuality where it arises-if the vacancies are more than 20%of the sanctioned strength, the cases in a particular categoryare pending for over five years, more than 10% of the backlogof pending cases are over five years old, the percentage of therate of disposal is lower than the institution of the cases eitherDin a particular subject matter or generally in the Court, even ifthere are not many old cases pending, but depending on thejurisdiction, a situation of mounting arrears is likely to arise ifthe rate of disposal is consistently lower than the rate of filingover a period of a year or more. [Para 53][346-F-H; 347-A-C]

Eii. Embargo Situation

Eii. Embargo Situation

Recourse to Article 224A is not an alternative to regularappointments. It is clarified that if recommendations have notbeen made for more than 20% of the regular vacancies thenthe trigger for recourse to Article 224A would not arise. TheFdata placed before this Court would suggest that there areonly ten High Courts having fewer than 20% vacancies as on1.4.2021; seven High Courts having fewer than 10% vacanciesin permanent appointments but then there may be additionalJudges and there are cases which are in the pipeline. Thus,the parameter adopted is that, at least, the recommendationsGshould have been made leaving not more than 20% vacanciesin order to take recourse to Article 224A. [Paras 54,55][347- C-E]

iii. Pre-recommendation process:

Past performance of recommendees in both quality andquantum of disposal of cases should be factored in for selectionas the objective is to clear the backlog. The Chief Justice shouldprepare a panel of Judges and former Judges. This would bein respect of Judges on the anvil of retirement and normallyJudges who have recently retired preferably within a periodof one year. However, there can be situations where the Judgemay have retired earlier but his expertise is required in aparticular subject matter. There may also be a scenario wherethe Judge(s) may prefer to take some time off beforeembarking upon a second innings albeit a short one. In thepreparation of panel, in order to take consent and take intoaccount different factors, a personal interaction should be heldwith the Judge concerned by the Chief Justice of the HighCourt. [Para 55][347-F-H; 348-A]

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointmentunder Article 224A. It is not law laid down in this behalf underArticle 141 of the Constitution but as a first step it may bemore appropriate to follow this procedure laid down in para 24of the MoP to see the progress made and impediments, if any.Since the Judges are already appointed to the post through awarrant of appointment, the occasion to refer the matter tothe IB or other agencies would not arise in such a case, whichwould itself shorten the time period. [Para 56][348-B-C]

v. Time to complete the process:

The requirement that recommendations should be madesix months in advance by the Chief Justice of the High Courtemanates from the concept that the said period should berequired to complete the process in case of a regularappointment of a Judge under Article 217 or 224. In view ofnumber of aspects not required to be adverted to forappointment under Article 224A, a period of about threemonths should be sufficient to process a recommendation and, A

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Athus, ideally a Chief Justice should start the process threemonths in advance for such appointment. [Para 57][348-D-E]

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed mayvary on the basis of the need but suffice to say that in order toBgive an element of certainty and looking to the purpose forwhich they are appointed, generally the appointment shouldbe for a period between two to three years. [Para 58][348-F- G]

vii. Number of Appointments:C

At least, for the time being dependent on the strength ofthe High Court and the problem faced by the Court, the numberof ad hoc Judges should be in the range of two to five in aHigh Court. However, it is clarified that an ad hoc Judge(s)would not be part of the sanctioned strength of Judges of theDHigh Court to which they are appointed. [Para 59][348-G-H]

viii. Role of ad hoc Judges:

a. The primary objective being to deal with long pendingarrears, the said objective would be subserved by assigning morethan five year old cases to the ad hoc Judges so appointed.EHowever, this would not impinge upon the discretion of the ChiefJustice of the High Court, if exigencies so demand for anyparticular subject matter even to deal with the cases less thanfive years old, though the primary objective must be kept in mind.It is further clarified that an ad hoc Judge would not be entrustedFany administrative work, as such entrustment would defeat thevery purpose of appointment of ad hoc Judge(s), which is to clearthe backlog of old cases. [Para 60][349-A-C]

b. As regards the issue of constitution of Benches of an adhoc Judge and sitting Judge in matters to be heard by DivisionGBench and as to who would preside, the Division Bench, atpresent, may be constituted only of ad hoc Judges because theseare old cases which need to be taken up by them. It is madeclear that because of the very nature of the profile and work to be H

carried out by ad hoc Judges, it would not be permissible for anad hoc Judge to perform any other legal work whether it beadvisory, of arbitration or appearance. [Para 61][349-C-D]

ix. Emoluments and Allowances:

a. The emoluments and allowances of an ad hoc Judgeshould be at par with a permanent Judge of that Court at therelevant stage of time minus the pension. This is necessary tomaintain the dignity of the Judge as also in view of the fact thatall other legal work has been prohibited in terms of the aforesaidguidelines. Emoluments to be paid would be a charge on theConsolidated Fund of India consisting of salary and allowances.It is clarified that it is a misconceived notion that there would bean additional burden on the State Government if some perquisitesare made available to ad hoc Judges by the State Government.The trigger for appointment of ad hoc Judges is the very existenceof vacancies and had these vacancies been filled in, the StateGovernment would have incurred these expenses anyhow. In anycase there is a limit placed on the number of ad hoc Judges and,thus, the existence of vacancies actually results in the savings forthe State Government(s), which would otherwise be amountexpended as their allowances and perks. [Paras 62-63][349-E-H; 350-A]

b. It is made clear that when reference is made to allowance/perks/perquisites all benefits as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s). Forclarity it is said that as far as housing accommodation is concerned,either the rent-free accommodation should be made available orthe housing allowance should be provided on the same termsand conditions. For all practical purposes the ad hoc Judge wouldreceive the same emoluments, allowances and benefits as areadmissible to the permanent/additional Judges. The SecondSchedule, Part D of the Constitution of India stipulates theemoluments and benefits that have to be conferred on the judgesof the Supreme Court and of the High Courts. [Para 64][350-A-C]

3. The first step is taken with the hope and aspiration thatall concerned would co-operate and retiring/retired Judges would

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Acome forth and offer their services in the larger interest of theJudiciary. The guidelines cannot be exhaustive and that too atthis stage. If problems arise, there will be endeavour resolvethem out. The apprehensions, if any, must be set aside to chartthis course and there will be a way forward. In view of therequirements of a continuous mandamus to see how a beginningBhas been made, the matter is listed after four months calling uponthe Ministry of Justice to file a report in respect of the progressmade. [Paras 65-66][350-D-E]

Krishan Gopal v. Shri Prakash Chandra & Ors. (1974)1 SCC 128 : [1974] 2 SCR 206; Justice P Venugopal v.CUnion of India and Ors. (2003) 7 SCC 726 : [2003] 3Suppl. SCR 286; Union of India v. SankalchandHimatlal Sheth (1977) 4 SCC 193 : [1978] 1 SCR 423;Anna Mathew v. N. Kannadasan 2009 (1) LW 87 (Mad)47); Ashok Tanwar and Anr. v. State of H.P. and OthersD(2005) 2 SCC 104 : [2004] 6 Suppl. SCR 1065; IndianSociety of Lawyers v. President of India (2011) 5 AllLJ 455 (FB); Supreme Court Advocate-on-RecordAssociation v. Union of India (1993) 4 SCC 441 : [1993]2 Suppl. SCR 659; Supreme Court Advocates-on-RecordAssociation & Anr. v. Union of India (NJAC case) (2016)E5 SCC 1 : [2015] 13 SCR 1 – referred to.

Constituent Assembly Debates Vol. VIII, 181; 124[th]report of the Law Commission; 79[th] Report of the LawCommission of 1979; 188th Report of the LawCommission of 2003; A. M. Singhvi, “Beating theFBacklog Reforms in Administration of Justice inIndia,” in S. Khurshid et. al., (eds.) Judicial Review-Process, Powers, and Problems (Essays in Honour ofUpendra Baxi), (Cambridge University Press 2020),page 53 – referred to.

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Case Law Reference

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(RETD.) v. UNION OF INDIA & ORS.

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CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1236of 2019.

(Under Article 32 of The Constitution of India)

Petitioner in person.

DEF

K.K. Venugopal, AG, R.S. Suri, ASG, Atmaram NS Nadkarni,Gaurav Pachnanda, Ravindra Shrivastava, Arvind P. Datar, VijayHansaria, Ajit Kumar Sinha, R. Basant, Soumya Chakraborty, VikasSingh, Sr. Advs., B.K. Satija, Rajat Nair, Ms. Neela Kedar Gokhle,Gurmeet Singh Makkar, D.L. Chidananda, Salvador Santosh Rebello,Alok Kumar Pandey, Ashwin Kumar D.S, Ms. Preetika Dwivedi,Divyakant Lahoti, Parikshit Ahuja, Ms. Praveena Bisht, Ms. MadhurJhavar, Ms. Vindhya Mehra, Kartik Lahoti, Ms. Shivangi Malhotra,Jaigopal Saboo, Romy Chacko, Shakthi Chand Jaidwal, AniruddhaP. Mayee, Sahil Tagotra, Ms. Avni Sharma, V. N. Raghupathy, Md. ApzalAnsari, Sharan Thakur, Mahesh Thakur, Siddhartha Thakur, Arjun Garg,Ms. Shrutika Garg, Sibo Sankar Mishra, Ashok Kumar Singh, Rajiv Sinha,Niranjan Sahu, Umakant Mishra, Kunal Chatterji, Ms. MaitrayeeBanerjee, Pravar Veer Misra, Gopal Singh, Harpreet Singh Gupta, VidurDwivedi, Mukul Kumar, Ms. Uttara Babbar, Manan Bansal, Ms. ShwetaMohta, Apoorv Kurup, Ms. Nidhi Mittal, Abhimanyu Tewari, P.I. Jose,Ms. Sneha Kalita, Prashant K. Sharma, Ms. Radhika Gautam, AshwaryaSinha, Ms. Priyanka Sinha, Ms. Shubhi Sharma, T. G. Narayanan Nair,Manu Krishnan, V. Balachandran, Siddharth Naidu for M/s KSN &Co., Sanjai Kumar Pathak, Arvind Kumar Tripathi, Ms. Shashi Pathak,Ms. Aruna Mathur, Avneesh Arputham for M/s Arputham Aruna AndCo, Vinay Arora, Naresh K. Sharma, Advs. for the Respondents.

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AThe following Judgment of the Court was deliveredJ U D G M E N T

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AThe following Judgment of the Court was deliveredJ U D G M E N T

1. The intent of our order today is to activate a dormant provisionof the Constitution of India – Article 224A – for the appointment of adhoc Judges to deal with the unprecedented situation arising from theBbacklog of cases pending in the High Courts, which has now crossed thefigure of 57 lakh coupled with the consistent ratio of vacancies of almost40 per cent. Any Constitution has to be dynamic, and thus, even if theintent behind including the provision (as it appears from the ConstituentAssembly Debates) was slightly different, nothing prevents it from beingCutilised to subserve an endeavour to solve an existing problem. For as itis always said, ‘change is the only constant’.

2. India was fortunate to have some of the best minds work onthe framing of our Constitution as members of our Constituent Assembly.The Indian Constitution is an elaborate one, taking cues from theDexperience of various democracies. One of the essential aspects of ourConstitution has been the separation of powers between the Judiciary,Executive, and Legislature.

3. Chapter V of Part VI of the Constitution of India commencingfrom Article 214 upto Article 231 relates to the High Courts in the states.EArticle 217 provides for the appointment and conditions of the office ofa Judge of the High Court, wherein the current age of retirement is 62years. We may say that broadly, it is amongst the youngest ages ofretirement of judges of the apex Court of a state in comparison withother democracies of the world.

F4. Article 224 deals with the appointment of additional and actingjudges. The objective as set out in the Article is to take care of anytemporary increase in business of the High Court, or by reason of arrearsof work therein. The appointment of an additional judge duly qualified tobe the judge of a High Court has to be for a period not exceeding twoyears, or as the President may specify. The ground reality however,Gremains that while determining the strength of different High Courts, thepractice that has been adopted is that about 25% of the strength consistsof additional Judges.

5. In the present case, we are concerned with Article 224A whichreads as under:H

“224A. Appointment of retired Judges at sittings of High Courts-Notwithstanding anything in this Chapter, the Chief Justice of aHigh Court for any State, may with the previous consent of thePresident, request any person who has held the office of a Judgeof that Court or of any other High Court to sit and act as a Judgeof the High Court for that State, and every such person so requestedshall, while so sitting and acting, be entitled to such allowances asthe President may by order determine and have all the jurisdiction,powers, and privileges of, but shall not otherwise be deemed tobe, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require anysuch person as aforesaid to sit and act as a Judge of that HighCourt unless he consents so to do.”

6. The aforesaid Article begins with a non-obstante clause andwas placed so that a request can be made to any person who has heldthe office of a Judge of that Court or of any other High Court, to sit andact as a judge of the High Court for the state. The second aspect is thatwhile sitting and acting, such a judge would be entitled to such allowancesas the President may by order determine and have all the jurisdiction,powers, and privileges of the High Court judge; but for all other purposesshall not be deemed to be a High Court judge. The proviso stipulates thatconsent has to be obtained from the judge concerned.

7. It is the say of the petitioner before us in this public interestlitigation that a large number of vacancies of High Court judges coupledwith mounting arrears is a scenario which requires urgent attention andone of the modes to deal with both these aspects is resorting to Article224A of the Constitution of India.

The Historical Perspective:

8. Article 224A was numbered as Article 200 in the DraftConstitution and discussed by the Constituent Assembly on 7th June1949. The debate focused on the purpose and duration of the appointmentof 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 asan ad hoc judge;

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A3) whether the appointment of ad hoc judges was to be madewith the concurrence of the President.

9. Some part of the debates indicate that the retired judge was tobe invited back only for their expertise and experience to decide casesthat were particularly difficult or important; and that it may not beBadvisable to call retired judges and asked them to clear off the arrearspending before the High Court. On the other hand, Dr. B.R. Ambedkarhad clarified that the intent behind the appointment of ad hoc judges wasas 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 indefiniteClength of time. In his words :

“It seems to me that if you are not going to have any temporary oradditional judges you must make some kind of provision for thedisposal of certain business, for which it may not be feasible toappoint a temporary judge in time to discharge the duties of aDHigh 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 ofJudicature (Consolidation) Act, 1925 in the UK, and similar provisions inAmerica. It was explained that the proviso was inserted to avoid a situationEwhere the refusal of a retired judge to accept the invitation could betreated as remiss of his conduct.

11. Another important aspect as emerges from the debates, wasthat it was the view of Dr. Ambedkar himself that the matter of salaryand benefits would be governed by the rules governing pension. Thus,Fall benefits would be admissible minus the pension; though the precisedefinition of “privileges” of an ad hoc judge was left to the Parliament todecide. The aspect of concurrence of the President was also debatedand introduced to bring greater transparency in the process.

12. The aforesaid provision for appointment of ad hoc judges wasGremoved by the Constitution (7th Amendment) Act, 1956. The objectiveof that Act clarifies that this was done as the provision for recallingretired judges for a short period had been found to be neither adequatenor satisfactory. It was sought to be replaced by the current Article 224, 1 Speech by Dr. B.R. Ambedkar on 7th June 1949, Constituent Assembly Debates, Vol.HVIII, ¶181.

making provisions for appointment of additional judges to clear off arrearsand for the appointment of acting judges in temporary vacancies.

13. There appears to have been a legislative re-think as theprovision for the appointment of ad hoc judges was reintroduced videArticle 224A by the Constitution (15th Amendment) Act, 1963. The LokSabha debates did not specifically refer to the philosophy behind the re-introduction, but this can be extrapolated from the purpose behindintroducing ad hoc appointments in the Supreme Court of India. Thedebates 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 thatit was possibly better to call back a retired judge instead of appointing amember of the Bar for a few months. The amendments seeking to restrictthe term of ad-hoc judges to three months was however, negated, whileinserting this provision in the Constitution.

Judicial Views:

14. Now we turn to the aspects arising from the aforesaid provisionbeing debated in certain judicial precedents.

15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.[2] - aConstitution Bench of this Court (five judges) ruled on the issue of whethera person sitting and acting as a Judge of the High Court under Article224A of the Constitution has the jurisdiction to try an election petitionunder Section 80-A of the Representation of the People Act, 1951. Debatearose in the context of a judge of the Madhya Pradesh High Court whowas sitting and acting as a judge of that Court under Article 224A of theConstitution, and his appointment was to last for a period of one year ortill the disposal of elections petitions entrusted to him, whichever wasearlier. In that context it was observed that if a person appointed underArticle 224A of the Constitution was not considered to be a judge of theHigh Court for the purpose of jurisdiction, powers and privileges, thequestion of appointing such a person would never arise. The provisioncould not thus be rendered a dead letter. It was clarified that the effectof the provision would create a deeming fiction and the Court observed:

“15. (…) The person requested while so sitting and acting shallhave all the jurisdiction, powers and privileges of a judge of theHigh Court. Such a person shall not otherwise be deemed to be a

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Ajudge of that Court. The words “while so sitting, and acting” showthat the person requested not merely has the Jurisdiction, powersand privileges of a Judge of the, High Court, he also sits and actsas a Judge of that Court. Question then arises as to what is thesignificance of the concluding words “but shall not otherwise bedeemed to be a Judge of that Court”. These words, in our opinion,Bindicate that in matters not relating to jurisdiction, powers andprivileges the person so requested shall not be deemed to be aJudge of that Court. The dictionary meaning of the word“otherwise” is “in other ways”, “in other circumstances”, “in otherrespects”. The word “otherwise” would, therefore, point to theCconclusion that for the purpose of jurisdiction, powers and privilegesthe person requested shall be a Judge of the concerned High Courtand for purposes other than those of jurisdiction, powers andprivileges, the person requested shall not be deemed to be a Judgeof that Court. It would, for example, be not permissible to transferhim under Article 222 of the Constitution. The use of the wordD“deemed” shows that the person who sits and acts as a Judge ofthe High Court under Article 224-A is a Judge of the said HighCourt but by a legal fiction he is not to be considered to be aJudge of the High Court for purposes other than those relating tojurisdiction, powers and privileges. (…)”

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16. On the issue of entitlement of allowances of such an ad hocjudge, in Justice P Venugopal vs. Union of India and Ors.,[3]it wasopined that an ad hoc judge does not become a part of the High Courtand thus there is no question of computing his pension for the period heis appointed as an ad hoc judge. Thus, the ad hoc judge would not beFentitled to further pensionary benefits after he demits the Constitutionaloffice that he holds in terms of Article 217.

17. It may also be appropriate to turn to some of the opinionsexpressed on the requirement of consent of a retired Judge. In Union ofIndia vs. Sankalchand Himatlal Sheth,[4]it was observed that theGreason for insisting on consent was that a retired Judge cannot becompelled to work as an ad hoc judge against his consent. This is becausehe ceases to be a judge of the High Court on demitting office at theprescribed age and is not bound by the conditions of service.

3 (2003) 7 SCC 726.H4 (1977) 4 SCC 193.

18. It is appropriate to refer to more opinions albeit of the HighCourt to know how this particular aspect had been dealt with in theopinion of the High Court. In Anna Mathew vs. N. Kannadasan thoughthe issue was not directly in question, the aspect of appointment of an adhoc 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 inArticle 224A and Article 127. In that context, a reference had beenmade to the Constitution Bench judgment (five judges) of this Court inAshok Tanwar and Anr. vs. State of H.P. and Others.[6]Here, thereare observations to the effect that a consultation with the Collegiumwould not be necessary inasmuch as the Chief Justice is required torecommend the name of a sitting or a retired judge. However, that wasa case dealing with appointments to the Consumer Disputes RedressalCommission and in that context, consultation with the Collegium wasthought not necessary. However, if we turn to the judgment in AshokTanwar’s case (supra) we find there was actually no real discussionon Article 224A. What was in question was whether Section 16 of theConsumer Protection Act, 1986, (which requires the State to appoint aperson in consultation with the Chief Justice of the State) a consultationwith acting Chief Justice was sufficient compliance of the case.

19. The last judicial view we seek to refer to is of the Full Benchof the High Court of the Judicature at Allahabad in Indian Society ofLawyers vs. President of India which elaborately dealt with theinterpretation of Article 224A of the Constitution.[7] It was observed thatan ad hoc judge does not fall within Article 216, and that he is not a judgeof the High Court so sitting and acting. The President does not appointhim, and only gives his consent to the Chief Justice to request a formerjudge to sit and act as a judge of the High Court. Thus, the process ofappointment under Clause (1) of Article 217 does not apply to him. Thisis also the reason why while dealing with the aspect of monetaryemoluments of an ad hoc judge, it has been stated that the former judgewill be entitled to such allowances as the President may by orderdetermine though he shall have all the jurisdiction, powers, and privilegesbut will not otherwise be deemed to be a judge of that High Court.

5 2009 (1) LW 87 (Mad) (¶ 47).

6 (2005) 2 SCC 104

7 (2011) 5 All LJ 455 (FB).

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AThe Challenge Before the Judiciary

20. It is trite to say that we have a docket explosion in our countryand that it is difficult for adjudication to take place within a reasonableperiod of time. This crisis situation must be tackled. Some innovation isalways the rule of the game. In the present context, maybe a slightlyBdifferent view has to be taken in respect of the avowed purpose ofArticle 224A providing for ad hoc judges. We say so as we are facedwith the ground reality of almost 40% vacancies remaining in the regularappointments (both permanent and additional judges) over the last twoyears, as we have already mentioned. A number of vacancies arisingCevery year are barely filled in by fresh appointments. Thus, it remains anunfulfilled challenge to bring the appointment process to such numbersas would be able to cover the vacancies existing and arising. Withoutendeavouring to blame anyone, a ground reality remains that there aremanifold reasons for the same.

D21. The present system of appointments as envisaged by theConstitution and as elucidated in the Collegium system makes it clearthat the first step is a recommendation from that High Court by a collegiumof the three senior-most judges presided over by the Chief Justice of theHigh Court. This process in turn requires wide consultation by the ChiefJustice of the High Court to identify the requisite talent, so as to makeEthe recommendations. Contrary to some portrayed beliefs as if this is anextremely subjective system, every Chief Justice is actually required tosolicit names from different sources whether it be sitting judges, retiredjudges, or prominent members of the Bar. It is from this pool of talentthat he selects, after a discussion before the collegium, the most suitableFcandidates. It is thus of utmost importance that the flow ofrecommendations continues for the appointment process to worksuccessfully. The vacancies existing and arising are always known, as ajudge demits office in the High Court on his 62[nd] birthday. The onlyexception can be an unforeseen eventuality or an elevation to the SupremeCourt of India. Thus, every endeavour has to be made to see that theGrecommendations are made well in advance while maintaining a balancebetween recommendations from the Bar and the subordinate judiciary,about six months in advance as per norms which were thought to be theappropriate time period within which the whole process of appointmentought to be concluded. This aspect has been emphasized by us in anotherHconnected 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 45to 55 years, there may be situations where at one go all recommendationsagainst vacancies may not be possible to be made. However nothingprohibits - or rather the exigencies of the appointment process requires- recommendations to be periodically made without unnecessarily waitingfor the outcome of the first set of recommendations. If this continuingpipeline operates and even if some recommendations fall by the wayside,over a reasonable period of time the vacancies can be filled up. Thecurrent situation of vacancies, especially in some of the larger courtswith very few recommendations in the pipeline seems to be the genesisof this problem.

23. The data placed before us, as drawn from the National JudicialData Grid (“NJDG”) shows that five (5) High Courts alone are responsiblefor 54% of the pendency of over 57,51,312 cases – the High Courts ofAllahabad, Punjab & Haryana, Madras, Bombay, and Rajasthan. TheMadras High Court has among the highest arrears in the country of 5.8lakh cases despite having fewer vacancies than most other High Courts(i.e., 7%). This does not take away from the requirement of appointingad hoc Judges but supports the view that even if the existing vacanciesare few, a situation may arise requiring the expertise of experiencedJudges to be appointed as ad hoc Judges. On the other hand, CalcuttaHigh Court has one of the highest vacancies of regular appointments(44%) but less than half the arrears as compared to Madras (2.7 lakhcases). In such a scenario, it is apparently the absence of strength of theJudges which may be responsible for creating the arrears and, thus,giving rise to another scenario for appointment of ad hoc Judges. InPunjab & Haryana High Court, which has a vacancy problem, the arrearshave more than doubled over the last six years. The NJDG data showsthat 56.4% pending cases were filed within the past five years whereas40% of the pending cases were filed between 5 to 20 years ago. Theprimary purpose of appointing ad hoc Judges is to deal with the lattergroup of cases that have been pending for over five years. The tablebelow, put on record by Senior Advocate Mr. Datar shows the percentagebreak-up of cases pending before High Courts for different periods oftime as on 04.04.2021:

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24. We may only emphasize that one of the most importantadministrative functions of the Chief Justice of the High Court is toidentify suitable candidates for elevation as judges of the High Courtand make recommendations in turn. The pipeline of recommendation ofCJudges has to be kept flowing so as to cover vacancies.

25. Once the recommendation is made, opinions of StateGovernments are solicited as also the input from the Intelligence Bureau(“IB”). The recommendations are then processed by the CentralGovernment in all manners, before they are put up to the collegium ofDthe Supreme Court of India. This is another area of some concern asthere have been many cases which have remained pending for longperiods of time - though in view of certain queries posed in these judicialproceedings, the situation has now improved. We may only say that innormal circumstances, the total time period before names are forwardedto the Supreme Court collegium should not exceed four months after theErecommendations 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 theopinions of the consultee judges. Those names which find approval ofthe collegium are then recommended for appointment to the Union ofFIndia. At that stage, the Government either proceeds to appoint the judgesor it may have some reservations, in which case it would be within theirright to return the recommendations with the reservations they haveover the appointment. On reconsideration, if the recommendation isreiterated, in terms of the prevalent legal position, the appointment hasGto be made. The delays in this is a matter of concern as therecommendation of the collegium should not remain pending for a longperiod 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 persuadecompetent and senior lawyers who may have large practices to acceptthe position of the judge, and the pendency of their names for a longHperiod of time does little to encourage them.

27. The fact remains that the aforesaid process has not resultedin filling up of vacancies for many years. It is not as if the vacant postsare a small fraction, as we have noticed that they have been hoveringaround 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 aquicker adjudicatory process?

29. The latter undoubtedly requires more number of judges andthus the present debate has arisen for the purposes of utilization of theexisting Article 224A of the Constitution to appoint ad hoc judges in thecontext of a large number of existing vacancies and pending arrears.

Memorandum of Procedure:

30. The Union of India vide additional affidavit dated 13.04.2021had placed before us a Memorandum of Procedure (“MoP”), whichwas prepared in the year 1998 in pursuance to the judgment of theSupreme Court in Supreme Court Advocate-on-Record Associationv. Union of India[8] (Second Judges case) read with the advisory opinionrendered in Special Reference No.1/1998[9] for “attendance of retiredJudges at sittings of High Courts.” It is the say of the Union of India thatthe appointment of retired Judges under Article 224A should be acollaborative process between the Executive and the Judiciary and theprocedure prescribed in para 24 may be followed till it is amended. Therelevant paragraph of the MoP reads as under:

“24. Under Article 224A of the Constitution, the Chief Justice ofa High Court may at any time, with the previous consent of thePresident, request any person who has held the office of a Judgeof that court or of any other High Court to sit and act as a Judgeof the High Court of that State. Whenever, the necessity for suchan appointment arises, the Chief Justice will after obtaining theconsent of the person concerned, communicate to the ChiefMinister of the State the name of the retired Judge and the periodfor which he will be required to sit and act as Judge of the HighCourt. The Chief Minister will, after consultation with the Governor, 8 (1993) 4 SCC 441

9 (1998) 7 SCC 739

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SUPREME COURT REPORTS

Aforward his recommendation to the Union Minister of Law, Justiceand Company Affairs. The Union Minister of Law, Justice andCompany Affairs would then consult the Chief Justice of India inaccordance with the prescribed procedure. On receipt of CJI’sadvice, the same would be put up to the Prime Minister, who willthen advise the President as to the person to be appointed to itBand act as a Judge of the High Court. As soon as the Presidentgives his consent to the appointment, the Secretary to theGovernment of India in the Department of Justice will inform theChief Justice of the High Court and the Chief Minister(s) and willissue the necessary notification in the Gazette of India.”

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31. We may notice that the subsequent endeavour to introducethe National Judicial Appointments Commission (‘NJAC’) through aconstitutional amendment could not withstand the constitutional challengein Supreme Court Advocates-on-Record Association & Anr. v. Unionof India (NJAC case)[10]. In this, it was observed that the process ofDamendment of the MoP could be finalised by the Executive in consultationwith the Chief Justice of India. In this behalf, the final view of the Judiciarywas sent after discussion and there is no change in the aforesaid. TheMoP has been circulated to the Chief Justices of the High Courts.

Law Commission Reports

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32. The path we seek to traverse is supported by the LawCommission Reports. In fact, the 124[th] report of the Law Commissiondelivered in 1988 dealt with the aspect that a fresh look was required forHigh Court arrears. In that context, it has been recognized that retiredjudges have several decades of adjudicatory experience, and their talentsFcould be utilized to dispose of mounting arrears. On account of theirexperience, they would be quick in disposing cases and being unburdenedwith administrative or admission work, they could spend their entire timehearing old matters. Thus, the appointment of retired judges as ad-hocjudges was seen as a part of a “multipronged attack” on arrears, andwas strongly recommended.G

33. This is not a first time that this aspect was noted. The79[th] Report of the Law Commission of 1979 had suggested recourse tothis Article to sub-serve the said objective. We may, however, noticethat in 245th Report of 2014, some concerns were expressed about this H10 (2016) 5 SCC 1

process on account of the appointment being for a short period and theaccountability in the functioning and performance of ad-hoc judges.

34. We may notice that in the 188th Report of the Law Commissionof 2003, that in the interest of clearing arrears in the High Court invarious types of cases, including criminal matters, it was felt that it wasthe need of the hour to make appointments under Article 224A of theConstitution. The concern was to bring the arrears within manageableproportions.

Some other views

35. In the recently published treatise, a view had been expressedthat 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 whichcan be relied upon to be competent, clean and efficient. This can be aneffective weapon to deal with the disposal of forgotten and pendingcases, more so in the context of inordinate delay in fresh judicialappointments.[11]

36. In the Chief Justices’ Conference held on 22[nd] and 23[rd] April2016, a resolution was adopted dealing with filling up of vacancies inHigh Courts and to address the problem of arrears in criminal and civilcases de hors Article 224A where it was perceived to be a course tofollow. The Resolution states as under:

“Resolved further that, keeping in view the large pendency ofcivil and criminal cases, especially criminal appeals where convictsare in jail and having due regard the recommendation made bythe 17th Law Commission of India in 2003, the Chief Justices willactively have regard to the provisions of Article 224A of theConstitution as a source for enhancing the strength of Judges todeal with the backlog of cases for a period of two years or theage of sixty five years, whichever is later until a five plus zeropendency is achieved.”

Article 224A earlier recourse:

37. We have already noticed that Article 224A has largely been adormant provision with only three recorded instances of its invocation.

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 (Essaysin Honour of Upendra Baxi), (Cambridge University Press 2020), page 53.

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AJustice Suraj Bhan of the Madhya Pradesh High Court was appointedas 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 ofelection petitions entrusted to him, whichever was earlier. Thus, it waswith a specific purpose.B38. Justice P. Venugopal of the Madras High Court was a Judgefor a short period of less than three years and close to his retirement, hewas appointed to a Commission of Inquiry to inquire into certain incidentsthat took place in Coimbatore town on 23.7.1981 and again appointed toa one-man commission to inquire into incidents of communal riots byorder dated 22.3.1982. He was appointed to the post of ad hoc Judge inCthe year 1982 and yet again his term was renewed for a period of oneyear from 19.8.1983.

39. Most recently in the year 2007, Justice O.P. Srivastava wasappointed as an ad hoc Judge in the Allahabad High Court. He was oneof the Members of the Special Bench constituted for hearing of theDAyodhya matter with the avowed object of facilitating continued andcontinuous hearing of the matter.

The Challenge Ahead:

40. We have little doubt that challenge of mounting arrears andEexisting vacancies requires recourse to Article 224A of the Constitutionto appoint ad-hoc judges which is a ready pool of talent, (of coursesubject to their concurrence) as a methodology especially for clearingthe old cases. The existing strength of permanent and additional judgescan be utilized for current and not so old cases. The ad-hoc judges areabsolved even from the administrative responsibilities. They canFconcentrate on old cases which are stuck in the system and may requiregreater experience. For example, it is often perceived that a RegularSecond Appeal is an area of concern and the more experienced judgesare able to attend to this area with more promptness.

41. We see no reason why there should be an unending debate ofGtaking recourse to Article 224A when such a provision exists in theConstitution. It should not be made a dead letter, more so when the needis so pressing.

42. We are unable to accept the plea of the learned AttorneyGeneral that though the Government of India may not have any in principleHopposition to the aforesaid, first the existing vacancies should be filled in. In our view, this would be a self-defeating argument because thevery reason why at present Article 224A has been resorted to is non-filling up of vacancies and the mounting arrears. We may, however,hasten to add that the objective is not to appoint ad-hoc judges instead ofjudges to be appointed to the regular strength of the High Court(apprehension expressed by Mr. Vikas Singh, Senior Counsel, Presidentof the Supreme Court Bar Association). The very provision makes itclear that it does not in any way constrain or limit the regular appointmentprocess and consent of the retired judge is sought to sit and act as ajudge of the High Court. One may say that this largely a transitorymethodology till all the appointment processes are in place, though thatmay 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 anenvironment where Article 224A is sought as panacea for inaction inmaking recommendations to the regular appointments. In order to preventsuch a situation, we are of the view that certain checks and balancesmust be provided so that Article 224A can be resorted to only on theprocess having being initiated for filling up of the regular vacancies andawaiting their appointments. We are thus of the view that there shouldnot be more than 20% of the vacancies for which no recommendationhas been made for this Article to be resorted to. We put this figure notout of the blue but looking to the entire scenario where sometimes it maybe difficult to find the requisite talent at a particular stage which mayhave to await some time period. However, certainly, it cannot becountenanced that no or very few recommendations are made for alarge number of vacancies by resorting to Article 224A.

44. We may have to turn to the aspect of the process to be followedfor making present appointments. The Constitution of India did not providefor a collegium system. This is an aspect which emerged from the casesof SP Gupta v. Union of India,[12]Supreme Court Advocates on Recordv. Union of India,[13]and in Re: Special Reference 1 of 1998[14]and itsmodified forms has remained in existence since then. The endeavour ofthe Government to bring in the National Judicial Appointments Commissiondid not pass the muster of the constitutional mandate and was struckdown in Supreme Court Advocates-on-Record Association and Anr.

12 (1982) 2 SCR 365.

13 (1993) 4 SCC 441.

14 AIR 1999 SC 1.

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Av. Union of India.[15]Thus, the collegium of the Supreme Court has animportant role to play in the appointment of judges of the High Court. Inthe aforesaid conspectus, the exercise by the Chief Justice of the HighCourt, the authority vested under Article 224A of the Constitution wouldrequire a prior consent from the judge concerned, and thatrecommendation in turn has to be routed through the collegium of theBSupreme Court. Of course, the previous consent of the President ofIndia (as advised) is necessary - but looking to the very nature of thisappointment, which is of a retired judge who for his judicial appointmenthas gone through the complete process, time period of maximum threemonths is more than sufficient to carry the process through all stages.CThis in turn would be facilitated if the Chief Justice of the High Courttakes the initial steps at least three months in advance so that there is nounnecessary delay in this regard.

45. We may add here that we are quite conscious of the differencein the manner of appointment of permanent and additional Judges, andDad hoc judges in the High Court. Thus, two scenarios of appointment ofJudges arise under Article 217 of the Constitution of India and theappointment has to be by the President by warrant under his hand andseal (Article 224 refers to the appointment of Additional and actingJudges). On the other hand, the appointment of a retired Judge as an adhoc Judge of the High Court under Article 224A of the ConstitutionEalbeit forming part of the same Chapter V of the Constitution of Indiabegins with a non obstante clause and provides for the Chief Justice ofa High Court to request any person who has held the office of a Judgeof that Court or any other High Court to sit and act as a Judge of theHigh Court for that State. On the consent of the President being granted, Fthe Secretary in the Government of India, Department of Justice is toinform the Chief Justice of the High Court and to issue necessarynotification in the Gazette of India as per the MoP. For clarity we mayadd that while the judicial pronouncements of the Supreme Court arelaw declared by this Court under Article 141 of the Constitution of India,

the MoP has been framed under an administrative discussion and cannotGbe said to be law declared by this Court. It can always be varied.46. In carrying out the aforesaid exercise, the Chief Justice of theHigh 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 andwhat 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 natureof cases, and the expertise of the judge especially in the areas wherethere is a large volume of pendency - as the objective is to clear the oldcases which are stuck in the system. Such consideration of objectivecriteria becomes necessary to have transparency in the system.

47. In the aforesaid context, we called upon various senior counselsassisting this Court to look into this matter and Mr. Arvind Datar, learnedsenior counsel to coordinate it so that we can have common suggestionsbefore us to assist us in formulating the modalities for recourse to Article224A.

48. On the aspect of allowances as admissible to an ad-hoc judgeto be determined by the President of India, it is trite to say that despitethe voluntary nature of work no one would like to accept allowancesless than what are admissible to a sitting judge. Thus, we are of the viewthat the same monetary benefits and privileges should be payable/availableto an ad-hoc judge as admissible to a judge minus the pension. That canbe 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 isa definitive need for activating the provision. There are differences ofperception with respect to different aspects such as, the trigger point toactivate the provision, suggestion of an embargo situation, the methodologyof appointment, the role of ad hoc Judges, age limit, tenure of appointment,etc. We have, thus, heard learned counsels on these various aspects. Acommon need has been felt to give guidelines to facilitate some elementof uniformity in taking recourse tothis dormant provision. It is also acommon ground, with which we agree, that while laying down guidelines,a periodic review of this experiment will be required and there may beoccasions to suitably modify the guidelines which we propose to laydown. Thus, it would not be appropriate to close the present proceedingsbut instead a concept of continuing mandamus would be appropriate inthe present proceedings to work out the most effective method of takingrecourse to Article 224A of the Constitution.

50. The principle of continuing mandamus forms part of ourConstitutional jurisprudence and the term was used for the first time in

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AVineet Narain v. Union of India[16]. The practice of issuing continuingdirections to ensure effective discharge of duties was labelled as a“continuing mandamus”. We may note that unlike a writ remedy, acontinuing mandamus is an innovative procedure not a substantive onewhich allows the Court an effective basis to ensure that the fruits of ajudgment can be enjoyed by the right-bearers, and its realisation is notBhindered by administrative and/or political recalcitrance. It is a meansdevised to ensure that the administration of justice translates into tangiblebenefits.

51. We have given deep thought to the slightly differentperspectives placed before us by way of affidavits by the different HighCCourts and Union of India. While emphasising that recourse to Article224A is the necessity of the day, and without inhibiting the expanse ofthe powers conferred on the Chief Justice of the High Court as per theConstitution, it would be in the fitness of things to lay down some guidelinesfor assistance of the Chief Justices of the High Courts and to make theDprovision a ‘live letter’.

52. We have, in this behalf, considered the various aspects touchedupon in the additional affidavit of the Union of India dated 13.4.2021. Infact, the response note of Mr. Datar is based on these different parametersand is intended to facilitate a cogent flow to the guidelines sought fromEus. We may notice that it is a common case that the present proceedingsare not adversarial but a method to make the provisions of Article 224Ainto a practical and working arrangement. We now proceed to issue theguidelines.

Guidelines:Fi. Trigger Point for activation:

53. The discretion of the Chief Justice of the High Court underArticle 224A is not constrained but as stated, some general guidelinesare required to be laid so that power conferred under the said provisionis exercised in a transparent manner. The Trigger Point cannot be singularGand 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 fiveyears.H16 (1998) 1 SCC 226

347A

c. More than 10% of the backlog of pending cases are over fiveyears old.

d. The percentage of the rate of disposal is lower than theinstitution of the cases either in a particular subject matter orgenerally in the Court.

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e. Even if there are not many old cases pending, but dependingon the jurisdiction, a situation of mounting arrears is likely toarise if the rate of disposal is consistently lower than the rateof filing over a period of a year or more.

ii. Embargo Situtation:

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54. We have already observed that the recourse to Article 224Ais not an alternative to regular appointments. In order to emphasise thisaspect, we clarify that if recommendations have not been made for morethan 20% of the regular vacancies then the trigger for recourse to Article224A would not arise.

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55. In this behalf we may take note of the data placed before uswhich would suggest that there are only ten High Courts having fewerthan 20% vacancies as on 1.4.2021; seven High Courts having fewerthan 10% vacancies in permanent appointments but then there may beadditional Judges and there are cases which are in the pipeline. Thus,the parameter we have adopted is that, at least, the recommendationsshould have been made leaving not more than 20% vacancies in order totake recourse to Article 224A.

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iii. Pre-recommendation process:

a. Past performance of recommendees in both quality andquantum of disposal of cases should be factored in for selectionas the objective is to clear the backlog.

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b. The Chief Justice should prepare a panel of Judges and formerJudges. Naturally this will be in respect of Judges on the anvilof retirement and normally Judges who have recently retiredGpreferably within a period of one year. However, there can besituations where the Judge may have retired earlier but hisexpertise is required in a particular subject matter. There mayalso be a scenario where the Judge(s) may prefer to take sometime off before embarking upon a second innings albeit a shortone. In the preparation of panel, in order to take consent andH

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Atake into account different factors, a personal interaction shouldbe held with the Judge concerned by the Chief Justice of theHigh Court.

iv. Methodology of Appointment:

56. We have already noticed that para 24 of the MoP lays down aBprocedure for appointment under Article 224A of the Constitution. Wehave also noticed that it is not law laid down in this behalf under Article141 of the Constitution but as a first step it may be more appropriate tofollow this procedure laid down in para 24 of the MoP to see the progressmade and impediments, if any. We may, however notice that since theCJudges are already appointed to the post through a warrant of appointment,the occasion to refer the matter to the IB or other agencies would notarise 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 sixDmonths in advance by the Chief Justice of the High Court emanatesfrom the concept that the said period should be required to complete theprocess in case of a regular appointment of a Judge under Article 217 or224 of the Constitution of India. In view of number of aspects not requiredto be adverted to for appointment under Article 224A we are of the viewEthat a period of about three months should be sufficient to process arecommendation and, thus, ideally a Chief Justice should start the processthree months in advance for such appointment.

vi. Tenure of Appointment:

58. The tenure for which an ad hoc Judge is appointed may varyFon the basis of the need but suffice to say that in order to give an elementof certainty and looking to the purpose for which they are appointed,generally the appointment should be for a period between two to threeyears.

vii. Number of Appointments:G

59. We are also of the view that, at least, for the time beingdependent on the strength of the High Court and the problem faced bythe Court, the number of ad hoc Judges should be in the range of two tofive in a High Court. However, it is clarified that an ad hoc Judge(s) willnot be part of the sanctioned strength of Judges of the High Court toHwhich they are appointed.

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 oldcases to the ad hoc Judges so appointed. However, this would not impingeupon the discretion of the Chief Justice of the High Court, if exigenciesso demand for any particular subject matter even to deal with the casesless than five years old, though the primary objective must be kept inmind. It is further clarified that an ad hoc Judge will not be entrusted anyadministrative work, as such entrustment will defeat the very purpose ofappointment of ad hoc Judge(s), which is to clear the backlog of oldcases.

61. One of the issues raised is of constitution of Benches of an adhoc Judge and sitting Judge in matters to be heard by Division Benchand as to who would preside. We are of the view that the DivisionBench, at present, may be constituted only of ad hoc Judges becausethese are old cases which need to be taken up by them. We also make itclear that because of the very nature of the profile and work to becarried out by ad hoc Judges, it would not be permissible for an ad hocJudge to perform any other legal work whether it be advisory, of arbitrationor appearance.

ix. Emoluments and Allowances:

62. We have already discussed in the substantive part of the orderthat the emoluments and allowances of an ad hoc Judge should be at parwith a permanent Judge of that Court at the relevant stage of time minusthe pension. This is necessary to maintain the dignity of the Judge asalso in view of the fact that all other legal work has been prohibited byus in terms of the aforesaid guidelines.

63. We also make it clear that emoluments to be paid would be acharge on the Consolidated Fund of India consisting of salary andallowances. We may also clarify that it is a misconceived notion thatthere will be an additional burden on the State Government if someperquisites are made available to ad hoc Judges by the State Government.The trigger for appointment of ad hoc Judges is the very existence ofvacancies and had these vacancies been filled in, the State Governmentwould have incurred these expenses anyhow. In any case there is a limitplaced on the number of ad hoc Judges and, thus, the existence ofvacancies actually results in the savings for the State Government(s), A

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C

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Awhich would otherwise be amount expended as their allowances andperks.

64. We make it clear that when we refer to allowance/perks/perquisites all benefits as are admissible to the permanent/additionalJudge(s) would be given to the ad hoc Judge(s). For clarity we may sayBthat as far as housing accommodation is concerned, either the rent-freeaccommodation should be made available or the housing allowance shouldbe provided on the same terms and conditions. For all practical purposesthe ad hoc Judge would receive the same emoluments, allowances andbenefits as are admissible to the permanent/additional Judges. We maynote that the Second Schedule, Part D of the Constitution of IndiaCstipulates the emoluments and benefits that have to be conferred on thejudges of the Supreme Court and of the High Courts.

Conclusion:

65. We have taken the first step with the hope and aspiration thatDall concerned would cooperate and retiring/retired Judges would comeforth and offer their services in the larger interest of the Judiciary. Theguidelines cannot be exhaustive and that too at this stage. If problemsarise, we will endeavour to iron them out. We must set asideapprehensions, if any, to chart this course and we are confident thatthere will be a way forward.

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66. In view of the requirements of a continuous mandamus to seehow a beginning has been made, list after four months calling upon theMinistry of Justice to file a report in respect of the progress made.

FNidhi Jain

Directions issued.

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H