Terming pendency of around 57 lakh cases in high courts as "docket explosion", the Supreme Court Tuesday activated a "dormant" constitutional provision to pave way for appointment of retired high court judges as ad-hoc ones for a period of two to three years to clear backlog and came out with guidelines to regulate appointments.
A bench of Chief Justice S A Bobde and Justices S K Kaul and Surya Kant issued a slew of guidelines pertaining to issues such as the trigger point when the appointment process can be set in motion, tenure, procedure for appointment, salary, perks, maximum number of such judges and their role in adjudicating cases.
The CJI wrote the 37-page judgement on a PIL of NGO 'Lok Prahari' seeking appointment of ad-hoc judges in high courts under Article 224A in order to reduce pendency of cases.
The bench said the guidelines, at the stage, cannot be "exhaustive" and sought a report from the Ministry of Law and justice as to how progress has been made on appointments and fixed the plea for consideration after four months. It termed the case as the matter of continuous mandamus needing monitoring and said, "We have taken the first step with the hope and aspiration that all concerned would cooperate 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, we will endeavour to iron them out. We must set aside apprehensions, if any, to chart this course and we are confident that there will be a way forward."
The judgement said its intent was "to activate a dormant provision of the Constitution" on the appointment of ad-hoc Judges to deal with "the unprecedented situation arising from the backlog of cases pending in High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent."
'Observing that "change is the only constant", the apex court said any Constitution has to be dynamic, and thus, even if the intent behind including the provision was slightly different, nothing prevented it from being utilised to subserve an endeavour to solve an existing problem.
"It is trite to say that we have 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 providing for ad hoc judges," it said.
"We say so as we are faced with the ground reality of almost 40 per cent vacancies remaining in the regular appointments over the last two years, as we have already mentioned and a number of vacancies arising every year are barely filled in by fresh appointments," it said.
"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. Without endeavouring to blame anyone, a ground reality remains that there are manifold reasons for the same," it said.
On the issue of trigger point of activation, the verdict said it cannot be singular and the discretion of the Chief Justice of a High Court is not constrained but, some general guidelines are required to be laid so that power conferred under the provision is exercised in a transparent manner.
The process to appoint ad-hoc judges can be initiated if vacancies are more than 20 per cent of the sanctioned strength of the high court and cases in a particular category are pending for over five years, it said.
"More than 10 per cent of the backlog of pending cases are over five years old and 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" then the appointment process can be initiated.
It also said Article 224A is not an alternative to regular appointments and emphasized this aspect saying "we clarify that if recommendations have not been made for more than 20 percent of the regular vacancies then the trigger for recourse to Article 224A would not arise".
Past performance of recommendees retired judges in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog, it said.
"We may, however notice that since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB (Intelligence Bureau) or other agencies would not arise in such a case, which would itself shorten the time period," it said, adding that the appointment process can be completed in three months.
It also said that two to five ad-hoc judges can be appointed in a high court for a period of two to three years to clear the backlog of the cases and they would be getting the emoluments and perks like regular judges except the pension. The ad-hoc judges, whose consent prior to appointment would be needed, will not be able to undertake other judicial or advisory work, it said.