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DAILY NEWS ANALYSIS

  • 23 April, 2021

  • 5 Min Read

Appointment of Ad hoc judges

Appointment of Ad hoc judges

Introduction

  • The Supreme Court’s decision to invoke Article 224A in the Constitution to clear the way for appointment of retired judges as ad hoc judges to clear the mounting arrears in the various High Courts is an indictment of the extraordinary delay in filling up judicial vacancies.

Huge vacancy in High court

  • Whether the fault lies with the Collegium system or the Centre’s tardiness, there is little doubt that the unacceptable delay in the appointment process in recent times has caused huge vacancies in the High Courts.

Article 224A

  • Under Article 224A of the Constitution, the Chief Justice of a High Court may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that court or of any other High Court to sit and act as a Judge of the High Court of that State
  • A Bench headed by CJI S.A. Bobde has made it clear that “the challenge of mounting arrears and existing vacancies requires recourse to Article 224A”.
  • The numbers both in respect of pendency of cases and vacancies in the High Courts are quite concerning — a backlog of over 57 lakh cases, and a vacancy level of 40%.
  • Five High Courts account for 54% of these cases.

No correlation between vacancy and pendency of cases

  • Interestingly, official data suggest that there need not be a correlation between the number of vacancies and the large backlog.
  • The Madras High Court has 5.8 lakh cases against a relatively low level of vacancy at 7%.
  • As many as 44% of the posts in the Calcutta High Court are vacant, but the cases in arrears stand at 2.7 lakh.

Ad hoc judges

  • A judge ad hoc is a judge appointed by a special procedure for a specific project, case, or period only—as opposed to, and in contrast to, a regular judge, appointed through a regular procedure for a regular period of time.
  • A court or tribunal without regular judges cannot, by definition, have ad hoc judges

Oral guidelines under Article 224A

  • The Court has made a beginning by directing that the trigger point for such an appointment will be when the vacancies go beyond 20% of the sanctioned strength, or when more than 10% of the backlog of pending cases are over five years old; when cases in a particular category are pending for over five years, or when the rate of disposal is slower than the rate of institution of fresh cases.
    • The Bench has ruled that the current Memorandum of Procedure be also followed for appointing ad hoc judges, a process initiated by the Chief Justice of a High Court, with a suggested tenure of two to three years.
  • The Court has clarified that this is a “transitory methodology” and does not constrain the regular appointment process.

Way forward

  • As for the judiciary, it should ensure that only retired judges with experience and expertise are offered the temporary positions, and there is no hint of favouritism.

Source: TH


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