The Supreme Court on Tuesday delivered two important orders issuing guidelines to the Centre and high courts to deal with judges' vacancies and pending cases in the higher judiciary. In one order, the top court laid down a timeline for the Centre must adhere to while appointing judges. In another, the Supreme Court directed high court chief justices to initiate the process to appoint ad hoc judges—retired high court judges—once vacancy of judges crosses the 20% mark.
Both the orders were delivered by a bench led by outgoing Chief Justice SA Bobde, who retires on April 23. The two orders, though separate, are connected as it tackles the issue of pending vacancies in the higher judiciary.
The top court ruled that appointing ad hoc judges—retired HC judges—is a constitutional provision and the high courts must go ahead with it in order to deal with cases that have been pending for more than five years. The top court stressed that such appointments would not substitute regular appointments.
In the other order, the top court clarified that the Centre must appoint judges within three-four weeks once the collegium reiterates its recommendations.
The appointment of judges is governed by Article 217 of the Indian Constitution and its process is outlined in the Memorandum of Procedure (MoP), which though finalised by the Supreme Courts awaits the Centre's nod. This order, directing the Centre to adhere to a timeline, sets the course for timely appointments to the higher judiciary as envisioned in the MoP.
Supreme Court has a sanctioned strength of 34 judges, while 25 high courts have a sanctioned strength of 1080 judges. Currently, the top court is short of five judges for a full strength—six after CJI Bobde retires—while the high courts have 411 vacancies (as on April 1).
"The High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts with many of the larger High Courts working under 50% of their sanctioned strength," the bench led by outgoing Chief Justice of India SA Bobde observed in one order. "Out of that, 196 proposals to fill up those vacancies are pending with the government while in case of 220 vacancies, High Court collegiums are yet to make recommendations," the apex court said.
The Centre appoints judges to the higher judiciary based on recommendations made by the Supreme Court collegium. Five senior-most judges including the Chief Justice of India (CJI) form a collegium for recommendations to the top court and chief justices for high courts, while a smaller group of the three senior-most judges make recommendations for elevation as judges to the high court. A high court collegium—similar to the top court collegium—sends a list of candidates to the Supreme Court for their consideration.
Centre to appoint judges within four weeks if candidates reiterated by Collegium
Once a high court collegium makes its recommendations, the Intelligence Bureau (IB) must submit its report/inputs with the Centre within four-six weeks.
After Centre gets inputs on candidates from the state governments and the IB, it must inform the Supreme Court of its decision within eight-12 weeks.
However, more importantly, after the Supreme Court reiterates its proposal on the final list of candidates, the Centre must notify appointments within three-four weeks.
Considerations for the appointment of the ad hoc judges
The primary role of an ad hoc judge is to deal with cases that have been pending for more than five years. An ad hoc judge may also be appointed if exigencies so demand for any particular subject matter even to deal with cases less than five years old.
Since judges are already appointed through a warrant of appointment, ad hoc judges may not be referred to the IB or other agencies, thus shortening the process of their appointment. Past performance of the recommendees—both quality and quantum of disposal of cases—must be considered.
Vacancies crossing the 20% mark is not the only trigger that kick-starts the process to appoint ad hoc judges. The Chief Justices of High Court may appoint ad hoc judges when:
1) Cases are pending for more than five years in a particular category;
2) More than 10% of the pending cases in the high court are older than five years old;
3) Percentage of disposal rate of cases is low;
4) 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.
Perks, salary and allowance, paid from the consolidated fund of India, given to an ad hoc judge will be at par with a permanent judge of that Court at the relevant stage of time minus the pension.
An ad hoc judge may not perform any other legal work whether in an advisory capacity, arbitration or appearance.