Appointing new judges to the high courts is a time-consuming process because the chief justice invites senior counsels, who appear frequently before the court, to accept judgeship. The names are generally put forward by the two seniormost judges of the high court, who are supposed to be well versed with the affairs of that high court. The chief justice, who is normally from outside the state, may not be as familiar with these senior advocates as his two senior colleagues.
The names are then forwarded to the chief minister and the governor, while the Intelligence Bureau is supposed to do a confidential background check so that their report is forwarded to the governor of the state, who then forwards the file of the putative judge to the Chief Justice of India (CJI).
The CJI consults his two senior judges to elicit their views on how suitable the putative judge will be. When Justice Jasti Chelameshwar was the senior judge of the Supreme Court, he said the collegium proceedings were held behind closed doors. At that time, some collegium members would allegedly lobby for their candidate as trade-offs. The proceedings of the collegium were opaque.
After the collegium evaluates the dossier of the putative high court judge, they seek the opinion of a judge who is well-versed in the affairs of that high court. He is called a ‘consultee judge.’ After that, the dossiers are forwarded to the Union Ministry for Law, Justice and Company Affairs. The government, of which this ministry forms a part, can return the names of those whom they object to on various grounds.
The government blocked the files of two lawyers whose names were iterated by the Supreme Court collegium. They were John Satyen, who practiced in the Madras high court, and Saurabh Kirpal, who practiced in the Delhi high court. An expert in securities law, Justice Somasekhar Sundaresan was elevated to the Bombay high court after a prolonged delay.
Fresh judges are appointed for a period of two years as additional judges to reduce the backlog of cases. The quality of their orders and judgements with disposal rates are vetted by the senior judges of the high court so that when more vacancies arise after senior judges retire, these additional judges are confirmed.
Ipso facto, ad hoc judges who are re-appointed after they retire are like additional judges, who are also appointed for two years and made puisne’ (permanent) judges by the Supreme Court collegium on the recommendation of the chief justice of the high court. However, this provision of the Constitution is rarely invoked.
As per published data, the apex court has used Article 224A in three instances: 1) Justice Suraj Bhan was appointed ad hoc judge to the Madhya Pradesh high court in 1972; 2) Justice P. Venugopal was appointed ad hoc judge to the Madras high court in 1982; and 3) Justice O.P. Srivastava was appointed ad hoc judge to the Allahabad high court in 1983.
The backlog of cases has continued to mount in the high courts and the Supreme Court, while the government dilly-dallies on clearing the files of those whom the Supreme Court has cleared after a thorough vetting. This is why the Supreme Court wants to temporarily appoint retired judges on an ad hoc (as required) basis to reduce the mounting arrears in the high courts.
Article 224-A of the Constitution allows the chief justice of a high court to request retired high court judges to perform the duties of a judge again, with the approval of the President of India. This has rarely been invoked to dispose of mounting arrears of cases which cause delay in delivering judgements.
In January, the Supreme Court sought a modification of its own 2021 judgment, which held that appointments of ad hoc judges could only be made in specific circumstances. Retired judges, who are appointed on an ad hoc basis, get the same allowances, jurisdiction, powers and privileges of a high court judge.
The retired judge has to accept the offer of returning to his duties as a high court judge, and the President of India is also required to consent to these appointments, which is rarely withheld, as the first citizen of the state will not veto the proposal put forward by the Chief Justice of India.
The detailed procedure for elevating retired judges is found in the Memorandum of Procedure for the appointment of high court judges, which was written after the collegium system for appointing judges. It states that after the retired judge has consented to the appointment, the Chief Justice must forward the name and appointment details to the chief minister.
The appointment of retired judges to dispose of pending cases is identical to the appointment of new judges for the high courts. This is because even after they consent, the Supreme Court collegium has to approve their appointments. The Law Commission of India has recommended that appointing retired judges, who are seasoned in hearing arguments and disposing of cases, is the most viable solution to dispose of the pending backlog of cases that have clogged the dockets of the high courts.
In a case known as Lok Prahari, the Supreme Court voiced its concern that Article 224A would indirectly lead to indolence in making recommendations for regular appointments. The apex court gave directions on when the process could be initiated. The Supreme Court held that ad hoc judges could only be appointed when recommendations were not made for less than 20 per cent of the vacancies.
The main question is whether these ad hoc judges will succeed in reducing the mounting arrears of cases in the high courts. It certainly will, but it may also have the undesirable effect of blocking legal talent for appointment as high court judges.
Olav Albuquerque holds a Ph.D in law and is a senior journalist cum advocate of the Bombay high court
