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Supreme Court to issue guidelines for appointment of ad hoc judges for resolving pending cases

Dated: March 25, 2021

                                                                                                                                                          - By Megha Bhatia

On March 25, 2021, the Supreme Court announced that it will lay down certain guidelines for the selection of ad hoc judges in order to speed up the resolution of old cases. 

Chief Justice SA Bobde said that if the pendency of a case in a specific matter or jurisdiction exceeds a certain threshold, such as 8 or 10 years, the CJ will appoint an ad hoc judge with experience in that area.

The Supreme Court has asked all High Courts to respond to a petition filed by the NGO Lok Prahari, which seeks the appointment of additional judges to the Supreme Court under Article 128 of the Indian Constitution.

During the hearing, a Bench headed by CJI SA Bobde stated that the hiring of Additional Judges is “need of the hour” and would be necessary to manage the Court's “out of hand” backlog. 

The matter was adjourned until April 8th, with a directive to all High Courts to submit their suggestions in the meantime.

The Bench has stated that it is not willing to postpone this matter and that no further adjournments will be given.

In the Courtroom

Recognising the importance of the issue raised in the petition, the CJI said, “The pendency has gone out of control. There are Civil Applications pending in North India up to 30 years. There are all kinds of problems High Courts are facing.”

According to CJI Bobde, certain Additional Judges will remain on these rosters and the pendency can be lifted. He clarified, however, that this would not affect normal Judge appointments, and that no one should be put in jeopardy as a result of the invocation of this clause.

“What we have in mind isn’t that system of appointment of regular judges should be stalled or stopped by Adhoc...It has nothing to do with regular Appointments. But they will be considered junior most. It’s not a threat to anybody in functioning of the Court... The idea isn’t of the Bench or the Petitioner. It is a constitutional provision (Article 128). The only thing is that it has not been implemented,” the CJI explained.

After hearing the opinions of numerous counsels appearing for the High Courts of Allahabad, Madhya Pradesh, Uttarakhand, and others, the order was passed. All of the counsels supported the idea.

He further added, “After the Supreme Court Collegium approves the proposed name(s they can sit and their tenure can be extended. Other factors like accommodation will have be looked into it.”

President’s approval for ad hoc appointment

Advocate hoc appointments require the President’s approval. During the hearing, the Court was drawn to Article 224A of the Constitution, which deals with “Appointment of retired Judges at sittings of High Court.”

The Court observed that the Article applies to India’s President (for his consent). “The President cannot operate without the Collegium,” it said.

Justice Kaul added, “Consent of the President is required. That means, consent of the Cabinet and consent of the Collegium also.”

Senior Advocate Basant argued at this point that the Article needs “previous consent to resort to the article is required.”

He suggested that the terms “previous consent” in the Article refer to consent to use the Article rather than consent from the persons in question (who are proposed to be appointed). “Otherwise, the purpose would be hopelessly defeated. If you think power goes to the Collegium then alright but I don't think so. I think it is only the Chief Justice,” he added. 

Unconvinced, the Bench said, “if the word “consent” under the Article means consent of the President for High Court to resort to the Article, and the President denies his assent, the Article will be rendered completely unworkable.”

It went on to say that it would make a statement after consulting with the High Courts. As a result, the Registrar Generals of the High Courts have been directed to file their affidavits. 

Senior Advocate Nadkarni said that the Supreme Court’s Registrar General had already filed an affidavit in the case.

Mr. SN Shukla, Secretary of Lok Prahari, represented the Petitioner.