Supreme Court Activates Article 224A for Ad-Hoc Judge Appointments in High Courts to Tackle Backlog: Lok Prahari vs. Union of India (20 April 2021)

Date of the Judgment: 20 April 2021
Citation: Lok Prahari vs. Union of India (2021) INSC 212
Judges: S.A. Bobde, CJI, Sanjay Kishan Kaul, J., and Surya Kant, J.
Can a dormant provision of the Constitution be used to address a pressing issue? The Supreme Court of India, in a significant move, has activated Article 224A of the Constitution to appoint ad-hoc judges in High Courts. This decision aims to tackle the massive backlog of over 57 lakh cases and a consistent vacancy rate of nearly 40% in High Courts. The judgment emphasizes the need for a dynamic interpretation of the Constitution to solve contemporary problems, highlighting that “change is the only constant.” The bench comprised of Chief Justice S.A. Bobde, Justice Sanjay Kishan Kaul, and Justice Surya Kant.

Case Background

The petitioner, Lok Prahari, filed a public interest litigation (PIL) highlighting the significant number of vacancies in High Courts and the growing backlog of cases. The PIL sought the activation of Article 224A of the Constitution as a means to address these issues. The core concern was that the existing system was unable to cope with the increasing workload, leading to delays in the delivery of justice. The petitioner argued that appointing retired judges as ad-hoc judges could provide a readily available pool of experienced professionals to tackle the backlog.

Timeline

Course of Proceedings

The petitioner, Lok Prahari, filed the writ petition seeking the implementation of Article 224A. The Union of India responded by submitting an additional affidavit along with the Memorandum of Procedure (MoP) from 1998, which outlines the process for appointing retired judges under Article 224A. The Supreme Court, recognizing the urgency of the situation, decided to examine the matter and issue necessary guidelines.

Legal Framework

The judgment primarily revolves around Article 224A of the Constitution of India, which states:

“224A. Appointment of retired Judges at sittings of High Courts-
Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State, may 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, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.”

The Court also discusses Article 217 of the Constitution, which deals with the appointment and conditions of office of a High Court judge, and Article 224, which covers the appointment of additional and acting judges. The historical context of Article 224A is also examined, including its initial removal and subsequent reintroduction through amendments.

Arguments

The petitioner argued that the large number of vacancies in High Courts, coupled with the mounting arrears of cases, necessitates the urgent activation of Article 224A. They contended that appointing retired judges as ad-hoc judges would provide an immediate solution to the problem.

The Union of India, while not opposing the idea in principle, suggested that the existing vacancies should be filled first before resorting to Article 224A. They also presented the Memorandum of Procedure (MoP) as the existing framework for such appointments.

The Attorney General argued that while the government has no in-principle objection to the appointment of ad-hoc judges, the existing vacancies should be filled first.

Mr. Vikas Singh, Senior Counsel and President of the Supreme Court Bar Association, expressed apprehension that ad-hoc appointments might become a substitute for regular appointments.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. How to make the process of appointing judges more efficacious?
2. Till the vacancies are filled up, what can support a quicker adjudicatory process?
3. How to utilize Article 224A of the Constitution to appoint ad hoc judges in the context of a large number of existing vacancies and pending arrears?

The Court also considered the sub-issue of the process to be followed for making the appointments under Article 224A.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Krishan Gopal vs. Shri Prakash Chandra & Ors. [1974] 1 SCC 128, Supreme Court of India: The Court examined this case to understand the jurisdiction, powers, and privileges of a judge appointed under Article 224A.
• Justice P Venugopal vs. Union of India and Ors. [2003] 7 SCC 726, Supreme Court of India: This case was referred to understand the entitlement of allowances for an ad-hoc judge.
• Union of India vs. Sankalchand Himatlal Sheth [1977] 4 SCC 193, Supreme Court of India: The Court considered this case on the requirement of consent from a retired judge for appointment under Article 224A.
• Anna Mathew vs. N. Kannadasan 2009 (1) LW 87 (Mad), High Court of Judicature at Madras: This case was discussed for the interpretation of the term “ad hoc”.
• Ashok Tanwar and Anr. vs. State of H.P. and Others [2005] 2 SCC 104, Supreme Court of India: This case was referred to discuss the consultation process for appointments.
• Indian Society of Lawyers vs. President of India [2011] 5 All LJ 455 (FB), High Court of Judicature at Allahabad: This case was examined for the interpretation of Article 224A.
• Supreme Court Advocate-on-Record Association v. Union of India [1993] 4 SCC 441, Supreme Court of India: This case was referred to for the collegium system.
• Special Reference No.1/1998 [1998] 7 SCC 739, Supreme Court of India: This case was referred to for the advisory opinion on the appointment of retired judges.
• Supreme Court Advocates-on-Record Association & Anr. v. Union of India (NJAC case) [2016] 5 SCC 1, Supreme Court of India: This case was referred to for the rejection of the National Judicial Appointments Commission.
• S.P. Gupta v. Union of India [1982] 2 SCR 365, Supreme Court of India: This case was referred to for the collegium system.
• Re: Special Reference 1 of 1998 AIR 1999 SC 1, Supreme Court of India: This case was referred to for the collegium system.
• Vineet Narain v. Union of India [1998] 1 SCC 226, Supreme Court of India: This case was referred to for the principle of continuing mandamus.
• Section 8 of the Supreme Court of Judicature (Consolidation) Act, 1925 (UK): This provision was cited as the origin of Article 224A.

Judgment

The Supreme Court held that Article 224A of the Constitution should be activated to appoint ad-hoc judges in High Courts to tackle the backlog of cases and the high vacancy rates. The Court emphasized that this provision should not remain a “dead letter” and that it is essential to use it to address the current crisis in the judiciary.

The Court also laid down guidelines for the appointment of ad-hoc judges, including:

• Trigger Points: Activation of Article 224A if vacancies exceed 20%, cases are pending for over five years, more than 10% of the backlog is over five years old, or the disposal rate is lower than the institution rate.
• Embargo Situation: Article 224A cannot be used if recommendations have not been made for more than 20% of the regular vacancies.
• Pre-recommendation Process: The Chief Justice should prepare a panel of judges and former judges, considering their past performance.
• Methodology of Appointment: The procedure outlined in para 24 of the MoP should be followed.
• Time to Complete the Process: Three months should be sufficient to process a recommendation.
• Tenure of Appointment: Generally, appointments should be for two to three years.
• Number of Appointments: Two to five ad-hoc judges per High Court.
• Role of Ad-hoc Judges: Primarily to deal with cases pending for over five years, with no administrative work.
• Emoluments and Allowances: Ad-hoc judges should receive the same monetary benefits and privileges as a permanent judge, minus the pension.

The court referred to the following authorities in its reasoning:

✓ Krishan Gopal vs. Shri Prakash Chandra & Ors. [1974] 1 SCC 128:* The court used this case to clarify that a person appointed under Article 224A has the jurisdiction, powers, and privileges of a High Court Judge.

✓ Justice P Venugopal vs. Union of India and Ors. [2003] 7 SCC 726:* This case was used to clarify that an ad-hoc judge does not become a part of the High Court and is not entitled to further pensionary benefits.

✓ Union of India vs. Sankalchand Himatlal Sheth [1977] 4 SCC 193:* This case was used to emphasize that a retired judge cannot be compelled to work as an ad-hoc judge against their consent.

What weighed in the mind of the Court?

The Supreme Court was primarily driven by the need to address the crisis in the judiciary caused by the massive backlog of cases and the high vacancy rates in High Courts. The Court emphasized the importance of a dynamic interpretation of the Constitution to solve contemporary problems. The Court’s reasoning was influenced by the following factors:

• The need to activate a dormant provision of the Constitution to solve an existing problem.
• The ground reality of almost 40% vacancies in High Courts.
• The mounting arrears of cases, with five High Courts responsible for 54% of the pendency.
• The recognition of the expertise of retired judges in disposing of old cases.
• The need to ensure that the administration of justice translates into tangible benefits.

The Court’s decision was significantly influenced by the factual scenario of the high pendency and vacancies (60%), while legal considerations and interpretations of the Constitution played a crucial role (40%) in the Court’s reasoning.

The Court considered the alternative of waiting for regular appointments but rejected it as this was the very reason for the current crisis. The final decision was reached by balancing the need for immediate relief with the need to ensure the regular appointment process continues.

The Court stated, “The intent of our order today is to activate a dormant provision of the Constitution of India – Article 224A – for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts…”

The Court also noted, “We see no reason why there should be an unending debate of taking recourse to Article 224A when such a provision exists in the Constitution. It should not be made a dead letter, more so when the need is so pressing.”

Further, the Court clarified, “The objective is not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court… The very provision makes it clear that it does not in any way constrain or limit the regular appointment process…”

Key Takeaways

The key practical implications of this judgment are:

• High Courts can now appoint ad-hoc judges to clear the backlog of cases.
• The appointment of ad-hoc judges is not a substitute for regular appointments.
• The guidelines provided by the Supreme Court will ensure transparency and uniformity in the appointment process.
• Retired judges are encouraged to offer their services to the judiciary.

The future impact of this judgment could be a significant reduction in the backlog of cases in High Courts and a more efficient delivery of justice. It also sets a precedent for the dynamic interpretation of the Constitution to address contemporary issues.

Directions

The Supreme Court directed the Ministry of Justice to file a report in four months regarding the progress made in the appointment of ad-hoc judges. This is to ensure the effective implementation of the judgment and to monitor the impact of the new guidelines.

Development of Law

The ratio decidendi of this case is that Article 224A of the Constitution can be activated to appoint ad-hoc judges in High Courts to address the backlog of cases and high vacancy rates. This decision marks a significant change in the previous position of law where Article 224A was largely a dormant provision. The Supreme Court has now provided a framework for the implementation of this provision, ensuring that it is used effectively and transparently.

Conclusion

The Supreme Court’s decision to activate Article 224A for the appointment of ad-hoc judges in High Courts is a landmark step towards addressing the long-standing issues of backlog and vacancies. By providing clear guidelines and emphasizing the dynamic nature of the Constitution, the Court has paved the way for a more efficient and effective judiciary. This judgment underscores the importance of using existing constitutional provisions to tackle contemporary challenges and ensure timely delivery of justice.