Lok Prahari through Its General Secretary S.N. Shukla Ias (Retd.) vs Union of India & Ors.

HELD: 1.1 It is trite to say that there is a docket explosion in our country and that it is difficult for adjudication to take place within a reasonable period of time. This crisis situation must be tackled. Some innovation is always the rule of the game. In the present context, maybe a slightly different view has to be taken in respect of the avowed purpose of Article 224A of the Constitution of India providing for ad hoc judges. It is said so as this Court is faced with the ground reality of almost 40% vacancies remaining in the regular appointments (both permanent and additional judges) over the last two years. A number of vacancies arising every year are barely filled in by fresh appointments. Thus, it remains an unfulfilled challenge to bring the appointment process to such numbers as would be able to cover the vacancies existing and arising. [Para 20][336-A-C]

1.2 The present system of appointments as envisaged by the Constitution and as elucidated in the Collegium system makes it clear that the first step is a recommendation from that High Court by a collegium of the three senior-most judges presided over by the Chief Justice of the High Court. This process in turn requires wide consultation by the Chief Justice of the High Court to identify the requisite talent, so as to make the recommendations. Contrary to some portrayed beliefs as if this is an extremely subjective system, every Chief Justice is actually required to solicit names from different sources whether it be sitting judges, retired judges, or prominent members of the Bar. It is from this pool of talent that he selects, after a discussion before the collegium, the most suitable candidates. It is thus, of utmost importance that the flow of recommendations continues for the appointment process to work successfully. The vacancies existing and arising are always known, as a judge demits office in the High Court on his 62nd birthday. The only exception can be an unforeseen eventuality or an elevation to the Supreme Court of India. Thus, every endeavour has to be made to see that the recommendations are made well in advance while maintaining a balance between recommendations from the Bar and the subordinate judiciary, about six months in advance as per norms which were thought to be the appropriate time period within which the whole process of appointment ought to be concluded. [Para 21][336-D-H]

1.3 On the basis of talent available; considering that the age profile for elevation from the Bar is between 45 to 55 years, there may be situations where at one go all recommendations against vacancies may not be possible to be made. However nothing prohibits - or rather the exigencies of the appointment process requires - recommendations to be periodically made without unnecessarily waiting for the outcome of the first set of recommendations. If this continuing pipeline operates and even if some recommendations fall by the wayside, over a reasonable period of time the vacancies can be filled up. The current situation of vacancies, especially in some of the larger courts with very few recommendations in the pipeline seems to be the genesis of this problem. [Para 22][337-A-C]

1.4 One of the most important administrative functions of the Chief Justice of the High Court is to identify suitable candidates for elevation as judges of the High Court and make recommendations in turn. The pipeline of recommendation of Judges has to be kept flowing so as to cover vacancies. Once the recommendation is made, opinions of State Governments are solicited as also the input from the Intelligence Bureau. The recommendations are then processed by the Central Government in all manners, before they are put up to the collegium of the Supreme Court of India. This is another area of some concern as there have been many cases which have remained pending for long periods of time - though in view of certain queries posed in these judicial proceedings, the situation has now improved. In normal circumstances, the total time period before names are forwarded to the Supreme Court collegium should not exceed four months after the recommendations are made by the collegium of the High Court. [Paras 24, 25][338-B-E]

1.5 The Supreme Court collegium, which is the first three judges, thereafter bestows its consideration on these names after obtaining the opinions of the consultee judges. Those names which find approval of the collegium are then recommended for appointment to the Union of India. At that stage, the Government either proceeds to appoint the judges or it may have some reservations, in which case it would be within their right to return the recommendations with the reservations they have over the appointment. On reconsideration, if the recommendation is reiterated, in terms of the prevalent legal position, the appointment has to be made. The delays in this is a matter of concern as the recommendation of the collegium should not remain pending for a long period of time. The said process should be completed at the earliest. In some of the courts it is a challenge to persuade competent and senior lawyers who may have large practices to accept the position of the judge, and the pendency of their names for a long period of time does little to encourage them. The fact remains that the said process has not resulted in filling up of vacancies for many years. It is not as if the vacant posts are a small fraction, as it is noticed that they have been hovering around the figure of 40% vacancies. [Paras 26, 27][338E-H; 339-A]

1.6 There is little doubt that challenge of mounting arrears and existing vacancies requires recourse to Article 224A of the Constitution to appoint ad-hoc judges which is a ready pool of talent, (of course subject to their concurrence) as a methodology especially for clearing the old cases. The existing strength of permanent and additional judges can be utilized for current and not so old cases. The ad-hoc judges are absolved even from the administrative responsibilities. They can concentrate on old cases which are stuck in the system and may require greater experience. The very provision makes it clear that it does not in any way constrain or limit the regular appointment process and consent of the retired judge is sought to sit and act as a judge of the High Court. One may say that this is largely a transitory methodology till all the appointment processes are in place, though that may not be the only reason to take recourse to the said Article. [Para 40, 42][342-E-F; 343-B-C]

1.7 This Court would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation, certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. Thus, there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to. This figure is placed looking to the entire scenario where sometimes it may be difficult to find the requisite talent at a particular stage which may have to await some time period. However, certainly, it cannot be countenanced that no or very few recommendations are made for a large number of vacancies by resorting to Article 224A. [Para 43][343-C-E]

1.8 The collegium of the Supreme Court has an important role to play in the appointment of judges of the High Court. In the said conspectus, the exercise by the Chief Justice of the High Court, the authority vested under Article 224A of the Constitution would require a prior consent from the judge concerned, and that recommendation in turn has to be routed through the collegium of the Supreme Court. Of course, the previous consent of the President of India (as advised) is necessary - but looking to the very nature of this appointment, which is of a retired judge who for his judicial appointment has gone through the complete process, time period of maximum three months is more than sufficient to carry the process through all stages. This in turn would be facilitated if the Chief Justice of the High Court takes the initial steps at least three months in advance so that there is no unnecessary delay in this regard. [Para 44][344-A-C] SP Gupta v. Union of India [1982] 2 SCR 365; Supreme Court Advocates on Record v. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Re: Special Reference 1 of 1998 AIR 1999 SC 1 : [1998] 2 Suppl. SCR 400; Supreme Court Advocates-on-Record

Association and Anr. v. Union of India 2015 11 SCALE

1 – referred to.

1.9 There is difference in the manner of appointment of permanent and additional Judges, and ad hoc judges in the High Court. Thus, two scenarios of appointment of Judges arise under Article 217 of the Constitution of India and the appointment has to be by the President by warrant under his hand and seal (Article

224 refers to the appointment of Additional and acting Judges). On the other hand, the appointment of a retired Judge as an ad hoc Judge of the High Court under Article 224A of the Constitution albeit forming part of the same Chapter V of the Constitution of India begins with a non obstante clause and provides for the Chief Justice of a High Court to request any person who has held the office of a Judge of that Court or any other High Court to sit and act as a Judge of the High Court for that State. On the consent of the President being granted, the Secretary in the Government of India, Department of Justice is to inform the Chief Justice of the High Court and to issue necessary notification in the Gazette of India as per the MoP. The MoP has been framed under an administrative discussion and cannot be said to be law declared by this Court. It can always be varied. [Para 45][344-D-G]

1.10 In carrying out the said exercise, the Chief Justice of the High 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 and what 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 nature of cases, and the expertise of the judge especially in the areas where there is a large volume of pendency - as the objective is to clear the old cases which are stuck in the system. Such consideration of objective criteria becomes necessary to have transparency in the system. [Para 46][344-G-H; 345-A-B]

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

1.12 A Common theme of the various suggestions placed is that there is a definitive need for activating the provision. There are differences of perception with respect to different aspects such as, the trigger point to activate the provision, suggestion of an embargo situation, the methodology of appointment, the role of ad hoc Judges, age limit, tenure of appointment, etc. A common need has been felt to give guidelines to facilitate some element of uniformity in taking recourse to this dormant provision. It is also a common ground, with which it is agreed, that while laying down guidelines, a periodic review of this experiment would be required and there may be occasions to suitably modify the guidelines which are proposed to be laid down. Thus, it would not be appropriate to close the present proceedings but instead a concept of continuing mandamus would be appropriate in the present proceedings to work out the most effective method of taking recourse to Article 224A of the Constitution. [Para 49][345-E-G]

1.13 The principle of continuing mandamus forms part of the Constitutional jurisprudence and the term was used for the first time in Vineet Narain v. Union of India’s case. The practice of issuing continuing directions to ensure effective discharge of duties was labelled as a “continuing mandamus”. Unlike a writ remedy, a continuing mandamus is an innovative procedure not a substantive one which allows the Court an effective basis to ensure that the fruits of a judgment can be enjoyed by the rightbearers, and its realisation is not hindered by administrative and/or political recalcitrance. It is a means devised to ensure that the administration of justice translates into tangible benefits. [Para 50][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 is the necessity of the day, and without inhibiting the expanse of the powers conferred on the Chief Justice of the High Court as per the Constitution, it would be in the fitness of things to lay down some guidelines for assistance of the Chief Justices of the High Courts and to make the provision a ‘live letter’. It might be noticed that it is a common case that the present proceedings are 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:

The discretion of the Chief Justice of the High Court under Article 224A is not constrained but as stated, some general guidelines are required to be laid so that power conferred under the said provision is exercised in a transparent manner. The Trigger Point cannot be singular and there can be more than one eventuality where it arises-if the vacancies are more than 20% of the sanctioned strength, the cases in a particular category are pending for over five years, more than 10% of the backlog of pending cases are over five years old, the percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court, even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more. [Para 53][346-F-H; 347-A-C] ii. Embargo Situation

Recourse to Article 224A is not an alternative to regular appointments. It is clarified that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise. The data placed before this Court would suggest that there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline. Thus, the parameter adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A. [Paras 54,55][347C-E] iii. Pre-recommendation process:

Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog. The Chief Justice should prepare a panel of Judges and former Judges. This would be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to t ake some tim e of f before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court. [Para 55][347-F-H; 348-A]

iv. Methodology of Appointment:

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

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required t o complete the process in case of a regular appointment of a Judge under Article 217 or 224. In view of number of aspect s not required t o be adverted to f or appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment. [Para 57][348-D-E] vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years. [Para 58][348-FG] vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court. However, it is clarified that an ad hoc Judge(s) would not be part of the sanctioned strength of Judges of the High 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 pending arrears, the said objective would be subserved by assigning more than five year old cases to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind. It is further clarified that an ad hoc Judge would not be entrusted any administrative work, as such entrustment would defeat the very purpose of appointment of ad hoc Judge(s), which is to clear the backlog of old cases. [Para 60][349-A-C] b. As regards the issue of constitution of Benches of an ad hoc Judge and sitting Judge in matters to be heard by Division Bench and as to who would preside, the Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them. It is made clear that because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance. [Para 61][349-C-D]

ix. Emoluments and Allowances:

a. The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension. This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited in terms of the aforesaid guidelines. Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances. It is clarified that it is a misconceived notion that there would be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks. [Paras 62-63][349-EH; 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). For clarity it is said that as far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions. For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges. The Second Schedule, Part D of the Constitution of India stipulates the emoluments and benefits that have to be conferred on the judges of the Supreme Court and of the High Courts. [Para 64][350-AC]

3. The first step is taken with the hope and aspiration that all concerned would co-operate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, there will be endeavour resolve them out. The apprehensions, if any, must be set aside to chart this course and there will be a way forward. In view of the requirements of a continuous mandamus to see how a beginning has been made, the matter is listed after four months calling upon the Ministry of Justice to file a report in respect of the progress made. [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. Union of India and Ors. (2003) 7 SCC 726 : [2003] 3 Suppl. SCR 286; Union of India v. Sankalchand Himatlal 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 Others (2005) 2 SCC 104 : [2004] 6 Suppl. SCR 1065; Indian Society of Lawyers v. President of India (2011) 5 All LJ 455 (FB); Supreme Court Advocate-on-Record Association v. Union of India (1993) 4 SCC 441 : [1993]

2 Suppl. SCR 659; Supreme Court Advocates-on-Record Association & Anr. v. Union of India (NJAC case) (2016)

5 SCC 1 : [2015] 13 SCR 1 – referred to.

Constituent Assembly Debates Vol. VIII, 181; 124 th report of the Law Commission; 79th Report of the Law Commission of 1979; 188th Report of the Law

Commission of 2003; A. M. Singhvi, “Beating the Backlog Reforms in Administration of Justice in India,” in S. Khurshid et. al., (eds.) Judicial ReviewProcess, Powers, and Problems (Essays in Honour of Upendra Baxi), (Cambridge University Press 2020), page 53 – referred to.