The Judicial system of our country is plagued with insurmountable pendency in
the subordinate judiciary with more than 3.5 crore cases pending. The High
Courts are also clogged with more than 5 lac cases pending in the various High
Courts. The number of vacancies in the High Courts is stupendous and there is
lack of Will of the Government and the Collegium to appoint new judges to the
various High Courts. Out of sanctioned strength of 1080 judges, the working
strength of judges in the High Courts is only 661 with whooping vacancies of 419
as on 01-03-2021.
The Supreme Court on March 25 expressed concern over the mounting pendency in
the High Courts and decided in principle for engaging retired high court judges
to tackle the huge pendency in the various High Courts. The Apex Court also
expressed dismay as to why the Central Government was sitting over 45 names
recommended for appointment as HC judges at the crucial time when vacancies in
the High Courts are pegged at 40% of the sanctioned strength.
The Apex Court
felt duty-bound to suggest to experiment a novel way to recall retired High
Court judges as mandated under Article 224A of the Constitution and has sought
suggestions from all High Courts so that standard operating procedures (SOPs) to
recall retired HC judges be finalized. The seriousness of the Apex court can be
gauged by the fact that it has directed the High Courts to respond before April
8, so that final directions be issued in this regard.
It would be trite to reproduce Article 224A of our Constitution which reads as
"Appointment of retired Judges at sittings of High Courts" Notwithstanding
anything in this Chapter, the Chief Justice of a High Court for any State may at
any time, with the previous consent of the President, request any person who has
held the office of Judge of that Court or of any other High Court to sit and act
as a Judge of the High Court for that State, and every such person so requested
shall, while so sitting and acting, be entitled to such allowances as the
President may by order determine and have all the jurisdiction, powers and
privileges of, but shall not otherwise be deemed to be, a Judge of that High
Court: Provided that nothing in this article shall be deemed to require any such
person as aforesaid to sit and act as a Judge of that High Court unless he
consents so to do."
It is relevant that the reappointment/ extension of tenure of Administrative
Officers in the Government is a common factor. Before 1975, there was a practice
of reappointment of Supreme Court Judges under Article 128 of the Constitution.
However, this precedent has not been resorted to in current times.
It would be
relevant to reproduce Article 128 of the Constitution of India which reads as
"128. Attendance of retired Judges at sittings of the Supreme Court
Notwithstanding anything in this chapter, the Chief Justice of India may at any
time, with the previous consent of the president, request any person who has
held the office of a Judge of the Supreme Court or of the Federal Court or who
has held the office of a Judge of a High Court and is duly qualified for
appointment as a Judge of the Supreme Court to sit and act as a Judge of the
Supreme Court, and every such person so requested shall, while so sitting and
acting, be entitled to such allowances as the President may by order determine
and have all the jurisdiction, powers and privileges of, but shall not otherwise
be deemed to be, a Judge of that Court: Provided that nothing in this article
shall be deemed to require any such person as aforesaid to sit and act as a
Judge of that Court unless he consents so to do."
The Apex Court observed that since the retired judges would be given a specific
tenure only to adjudicate the old pending cases and also as they would be
considered the junior-most in the hierarchy of the High Court, it would not
cause any discontent amongst the serving judges.
The Court expressed concern
that cases are pending in the High Courts for almost 2 decades and justice is
being delayed. The Court clarified that ad-hoc appointment of retired judges is
not a substitute or alternative to regular appointments to the High Court but an
emergency measure to unclog the High Courts & as soon as the pendency is over
their tenure of such judges would automatically come to an end.
It is indeed a welcome step in dispensation of justice as the retired Judges are
not only experienced but most suitable for adjudication of old pending cases. It
is pertinent that High Court Judges retire at the age of 62 and due to medical
advancements; a person is physically & mentally agile & fit till 70 years or
even more. But the million dollar question is what would be the incentive for
the retired judges to seek reappointment? It is common knowledge that the
retired judges draw a handsome pension.
They are also permitted to practice in the other High Courts & the Supreme
Court. There is also a practice of the retired judges being appointed as
Arbitrators by the Courts on payment of Honorarium/Remuneration. Moreover, the
retired judges would be placed lowest in the hierarchy of Judges. This would be
insulting & offensive to the senior retired judges to be placed below their
This could prove to be a temporary or interim measure to unclog the High Courts.
The solution to the problem of mounting pendency lies only & only by filling up
of vacancies by the Government, which is in the domain of the Collegium & the
Government. As an interim measure and in the wider interest of the suffering
litigants and to grant early justice, this measure is unreservedly welcome.
It is imperative that the Government should treat appointment of Judges as
urgent and clear all pending names at the earliest as there is no dearth of
talent, intellect, sincerity & integrity in our country and selection of 400+
incumbents should not pose a problem if there is Will & Determination of the
Government. It is also high-time to resort to Article 128 of the Constitution
for ad-hoc reappointment of retired judges of the Supreme Court so as to
expedite the final disposal of pending matters in the Apex Court also.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]