Supreme Court's decision on "Judges pro tem"

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  Supreme Court's decision on "Judges pro tem"

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• The story: The Supreme Court in April 2021 decided to invoke a “dormant provision” in the Constitution (Article 224A) to clear the way for appointment of retired judges as ad hoc judges.
• Logic of SC: The objective is to clear the mounting arrears in various High Courts, since numbers both in respect of pendency of cases and vacancies in the High Courts are quite concerning. There exists a backlog of over 57 lakh cases, and a vacancy level of 40%, with five High Courts accounting for 54% of these cases. The Article 224A provides for appointment of ad hoc judges in the High Courts, based on their consent.
• Issues related: The move reflects the extraordinary delay in filling up judicial vacancies, although the fault may lie 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. Official data suggests that there need not be a correlation between the number of vacancies and the large backlog. How? 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.
• Guidelines: The provision (Article 224A) has been utilised only sparingly in the past, and for the limited purpose of disposing of particular kinds of cases. The Supreme Court has now 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 5 years old (or) when cases in a particular category are pending for over 5 years, (or) when the rate of disposal is slower than the rate of institution of fresh cases.

1. The Bench ruled that the current Memorandum of Procedure be also followed for appointing ad hoc judges with a suggested tenure of 2 to 3 years. This is a process initiated by the Chief Justice of a High Court.
2. The Court has also clarified that this is a “transitory methodology” and does not constrain the regular appointment process.

• Government's action: Roping in retired HC judges to clear backlog should not be at the cost of regular appointments, and the government must expedite the regular appointment process from its end. It should give up its tendency to hold back some recommendations selectively. The judiciary too should ensure that only retired judges with experience and expertise are offered the temporary positions, and there is no hint of favouritism.

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