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Kenya Law / Blog / Case Summary: Appointment of retired judges as ad hoc judges under article 224A of the Constitution of India found essential to the public interest to aid in clearance of backlog of cases in High Courts

Appointment of retired judges as ad hoc judges under article 224A of the Constitution of India found essential to the public interest to aid in clearance of backlog of cases in High Courts

Lok Prahari through its General Secretary SN Shukla Ias (Retd.) v Union of India & Ors Writ

Petition (C) No. 1236 of 2019

Supreme Court of India

SA Bobde, CJI; SK Kaul, SU Kant, SCJJ

April 20, 2021

Reported by Faith Wanjiku

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Constitutional Law – High Courts – appointment of judges – appointment of retired judges at sittings of High Courts –need to revive article 224A – whether article 224A of the Constitution would be a recourse to the clearance of backlog of cases in the High Courts - circumstances that would lead to appointment of retired judges as ad hoc judges in High Courts – what circumstances would render the appointment of retired judges as ad hoc judges in High Courts in addition to sitting judges and those newly appointed to fill in vacancies - what guidelines would need to be laid down to help in the appointment of retired judges as ad hoc judges in High Courts.

Brief facts:

The petition was based on article 224A of the Constitution of India, 1950 (Constitution) which dealt with the appointment of additional and acting judges. The objective as set out in the article was to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein. The appointment of an additional judge duly qualified to be the judge of a High Court had to be for a period not exceeding two years, or as the President could specify. The ground reality however, remained that while determining the strength of different High Courts, the practice that had been adopted was that about 25% of the strength consisted of additional Judges. The intent of the petition was to activate a dormant provision of the Constitution, article 224A for the appointment of ad hoc judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which had now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. It was the say of the petitioner in the public interest litigation that a large number of vacancies of High Court judges coupled with mounting arrears was a scenario which required urgent attention and one of the modes to deal with both these aspects was resorting to article 224A of the Constitution.

Issues:

  1. What circumstances would render the appointment of retired judges as ad hoc judges in High Courts in addition to sitting judges and those newly appointed to fill in vacancies?
  2. Whether article 224A of the Constitution would be a recourse to the clearance of backlog of cases in the High Courts.
  3. What guidelines would be laid down to guide in the appointment of retired judges as ad hoc judges in High Courts?

  Relevant provisions of the law
Constitution of India, 1950
Article 224A – 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 with the previous consent of the President, request any person who has held the office of a 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.

Held

  1. The challenge of mounting arrears and existing vacancies required recourse to article 224A of the Constitution to appoint ad-hoc judges which was a ready pool of talent, (subject to their concurrence) as a methodology especially for clearing the old cases. The existing strength of permanent and additional judges could be utilized for current and not so old cases. The ad-hoc judges were absolved even from the administrative responsibilities. They could concentrate on old cases which were stuck in the system and could require greater experience. For example, it was often perceived that a regular second appeal was an area of concern and the more experienced judges were able to attend to that area with more promptness.
  2. Filling the existing vacancies first would be a self-defeating argument because the very reason why article 224A had been resorted to was non-filling up of vacancies and the mounting arrears. The objective was not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court. The very provision made it clear that it did not in any way constrain or limit the regular appointment process and consent of the retired judge was sought to sit and act as a judge of the High Court. One could say that that was largely a transitory methodology till all the appointment processes were in place, though that could not be the only reason to take recourse to the aforesaid article.
  3. The Supreme Court would not like to encourage an environment where article 224A was sought as a panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation, certain checks and balances had to be provided so that article 224A could be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. There should not be more than 20% of the vacancies for which no recommendation had been made for the article to be resorted to. The figure was put not out of the blue but looking to the entire scenario where sometimes it could be difficult to find the requisite talent at a particular stage which could have to await some time period. However, certainly, it could not be countenanced that no or very few recommendations were made for a large number of vacancies by resorting to article 224A.
  4. The Constitution did not provide for a collegium system. The endeavour of the government to bring in the National Judicial Appointments Commission did not pass the muster of the constitutional mandate and was struck down in Supreme Court Advocates-on-Record Association and Anr. v Union of India. Thus, the collegium of the Supreme Court had an important role to play in the appointment of judges of the High Court. In the aforesaid conspectus, the exercise by the Chief Justice of the High Court, the authority vested under article 224A of the Constitution would require a prior consent from the judge concerned, and that recommendation in turn had to be routed through the collegium of the Supreme Court. The previous consent of the President of India (as advised) was necessary but looking to the very nature of the appointment, which was of a retired judge who for his judicial appointment had gone through the complete process, time period of maximum three months was more than sufficient to carry the process through all stages. That in turn would be facilitated if the Chief Justice of the High Court took the initial steps at least three months in advance so that there was no unnecessary delay in that regard.
  5. There was a difference in the manner of appointment of permanent and additional Judges, and ad hoc judges in the High Court. Thus, two scenarios of appointment of Judges arose under article 217 of the Constitution and the appointment had to be by the President by warrant under his hand and seal. On the other hand, the appointment of a retired Judge as an ad hoc Judge of the High Court under article 224A of the Constitution albeit forming part of the same Chapter V of the Constitution began with a non obstante clause and provided for the Chief Justice of a High Court to request any person who had held the office of a Judge of that Court or any other High Court to sit and act as a Judge of the High Court for that State. On the consent of the President being granted, the Secretary in the Government of India, Department of Justice was to inform the Chief Justice of the High Court and to issue necessary notification in the Gazette of India as per the Memorandum of Procedure (MoP). While the judicial pronouncements of the Supreme Court were law declared by the court under article 141 of the Constitution, the MoP had been framed under an administrative discussion and could not be said to be law declared by the court and it could always be varied.
  6. In carrying out the aforesaid exercise, the Chief Justice of the High Court would have to bestow his consideration on the aspect as to who would be the suitable judge to be appointed as an ad-hoc judge and what was the time period for which the person had to be so appointed. That in turn would depend on the data of pendency of the different nature of cases, and the expertise of the judge especially in the areas where there was a large volume of pendency as the objective was to clear the old cases which were stuck in the system. Such consideration of objective criteria became necessary to have transparency in the system.
  7. On the aspect of allowances as admissible to an ad-hoc judge to be determined by the President of India, despite the voluntary nature of work no one would like to accept allowances less than what were admissible to a sitting judge. Thus the same monetary benefits and privileges should be payable/available to an ad-hoc judge as admissible to a judge minus the pension. That could be the only methodology appropriate to follow.
  8. A common need had been felt to give guidelines to facilitate some element of uniformity in taking recourse to the dormant provision. It was also a common ground, that while laying down guidelines, a periodic review of the experiment would be required and there could be occasions to suitably modify the guidelines which were proposed. Thus, it would not be appropriate to close the instant proceedings but instead a concept of continuing mandamus would be appropriate in the proceedings to work out the most effective method of taking recourse to article 224A of the Constitution.
  9. The principle of continuing mandamus formed part of the constitutional jurisprudence. The practice of issuing continuing directions to ensure effective discharge of duties was labelled as a continuing mandamus. Unlike a writ remedy, a continuing mandamus was an innovative procedure not a substantive one which allowed the court an effective basis to ensure that the fruits of a judgment could be enjoyed by the right-bearers, and its realisation was not hindered by administrative and/or political recalcitrance. It was a means devised to ensure that the administration of justice translated into tangible benefits.
  10. While emphasising that recourse to article 224A was the necessity of the day, and without inhibiting the expanse of the powers conferred on the Chief Justice of the High Court as per the Constitution, it would be in the fitness of things to lay down some guidelines for assistance of the Chief Justices of the High Courts and to make the provision a ‘live letter’ as followed:
    1. Trigger point for activation
      The discretion of the Chief Justice of the High Court under article 224A was not constrained but as stated, some general guidelines were required to be laid so that power conferred under the said provision was exercised in a transparent manner. The trigger point could not be singular and there could be more than one eventuality where it arose:

      1. If the vacancies were more than 20% of the sanctioned strength.
      2. The cases in a particular category were pending for over five years.
      3. More than 10% of the backlog of pending cases was over five years old.
      4. The percentage of the rate of disposal was lower than the institution of the cases either in a particular subject matter or generally in the court.
      5. Even if there were not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears was likely to arise if the rate of disposal was consistently lower than the rate of filing over a period of a year or more.
    2. Embargo situation
      If recommendations had not been made for more than 20% of the regular vacancies, then the trigger for recourse to article 224A would not arise. In that behalf the data placed before the court suggested that there were only ten High Courts having fewer than 20% vacancies as on April 1, 2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there could be additional Judges and there were cases which were in the pipeline. Thus, the parameter adopted was that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to article 224A.
    3. Pre-recommendation process
      Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective was to clear the backlog. The Chief Justice should prepare a panel of judges and former Judges. Naturally that would be in respect of judges on the anvil of retirement and normally judges who had recently retired preferably within a period of one year. However, there could be situations where the judge could have retired earlier but his expertise was required in a particular subject matter. There could also be a scenario where the judge(s) could prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the judge concerned by the Chief Justice of the High Court.
    4. Methodology of appointment
      The procedure for appointment under article 224A of the Constitution was not law laid down in that behalf under article 141 of the Constitution but as a first step it could be more appropriate to follow the procedure laid down in paragraph 24 of the MoP to see the progress made and impediments, if any. Since the judges were already appointed to the post through a warrant of appointment, the occasion to refer the matter to the Intelligence Bureau or other agencies would not arise in such a case, which would itself shorten the time period.
    5. Time to complete the process
      The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanated from the concept that the said period should be required to complete the process in case of a regular appointment of a judge under article 217 or 224 of the Constitution. In view of number of aspects not required to be adverted to for appointment under article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.
    6. Tenure of appointment
      The tenure for which an ad hoc judge was appointed could vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they were appointed, generally the appointment should be for a period between two to three years.
    7. Number of appointments
      At least, for the time being dependent on the strength of the High Court and the problem faced by the court, the number of ad hoc judges should be in the range of two to five in a High Court.
    8. Role of ad hoc judges
      The primary objective being to deal with long pending arrears, the said objective would be sub served by assigning more than five year old cases to the ad hoc judges so appointed. However, that would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demanded for any particular subject matter even to deal with the cases less than five years old, though the primary objective had to be kept in mind.
      One of the issues raised was of constitution of benches of an ad hoc judge and sitting judge in matters to be heard by Division Bench and as to who would preside. The Division Bench, at the time, could be constituted only of ad hoc judges because those were old cases which needed to be taken up by them. Because of the very nature of the profile and work to be carried out ad hoc judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.
    9. Emoluments and allowances
      The emoluments and allowances of an ad hoc judge should be at par with a permanent judge of that court at the relevant stage of time minus the pension. That was necessary to maintain the dignity of the judge as also in view of the fact that all other legal work had been prohibited by the court in terms of the aforesaid guidelines.
      Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances. It was a misconceived notion that there would be an additional burden on the State Government if some perquisites were made available to ad hoc judges by the State Government. The trigger for appointment of ad hoc judges was the very existence of vacancies and had those vacancies been filled in, the State Government would have incurred those expenses anyhow. In any case there was a limit placed on the number of ad hoc judges and, thus, the existence of vacancies actually resulted in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.
      All allowance/perks/perquisites all benefits as were admissible to the permanent/additional judge(s) would be given to the ad hoc judge(s). As far as housing accommodation was concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions. For all practical purposes the ad hoc judge would receive the same emoluments, allowances and benefits as were admissible to the permanent/additional judges. The Second Schedule, Part D of the Constitution stipulated the emoluments and benefits that had to be conferred on the judges of the Supreme Court and of the High Courts.
  11. [Obiter] “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.”

Petition allowed.

Order:

In view of the requirements of a continuous mandamus to see how a beginning has been made, list after four months calling upon the Ministry of Justice to file a report in respect of the progress made.

Relevance to Kenya’s legal system

The Constitution of Kenya, 2010 provides for the High Court in article 165 which shall consist of the number of judges prescribed by an Act of Parliament and have a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves. The High Court (Organization And Administration) Act No. 27 of 2015 also provides that the Court shall consist of not more than two hundred judges appointed in accordance with article 166(1)(b) of the Constitution.

The Commissioners of Assize Act, Cap 12 laws of Kenya provides in section 2 (1) for appointment of commissioners of assize (whenever the Chief Justice and the Attorney General shall jointly represent to the President that it is expedient) that is, appointment of one or more suitably qualified persons in addition to the judges of the High Court by the President, for the purposes of expediting the trial and determination of any criminal or civil causes or matters.

The commissioners of assize appointed hold office, subject to the terms and conditions of such instrument, for such period, or for such criminal or civil session or part of a criminal or civil session of the High Court, as shall be specified in the instrument.

Section 2 (2) goes on to clarify that “suitably qualified person” means a person qualified by law to be appointed a judge of the High Court.

Section 4 on status and powers of commissioners also provides that a commissioner of assize, shall, when engaged in the exercise of any Jurisdiction exercisable by him in pursuance of this Act, be deemed to constitute a court of the High Court, and he shall, during his period of office, have all the power, authority and jurisdiction of a judge of the High Court and take rank and precedence immediately after the Judges of the High Court.

In Kenya, in an effort to deal with the backlog of criminal appeals in the High Court, the former Chief Justice, Dr. Willy Mutunga, declared October 14–18, 2013 to be a ‘Judicial Service Week’ dedicated to the hearing of criminal appeals in the High Court and by Gazette Notice No. 13601, dated October 4, 2013, empanelled Judges of the Environment and Land Court and Employment and Labour Relations Court to sit with judges of the High Court, to hear and determine criminal appeals during that week.

This brought about a petition at the Supreme Court, Republic v Karisa Chengo & 2 others [2017] eKLR Petition 5 of 2015, where it was held that a particular judge undertook to perform stewardship of the particular office in respect of which the Judge took the oath, and not of a different office. The formal action-chain taken by relevant constitutional agencies, from advertisement, to appointment, and to oath-taking, was all linked, in each case, to a specific Court. The judges did not take a general oath as superior court judges but as High Court judges, or as Specialised Court judges, or as Court of Appeal judges, or as Supreme Court judges. If indeed the Constitution intended that judges should swear oaths of allegiance to all superior Courts in general, then it would have expressly stated so. The High Court was thus improperly constituted and had no jurisdiction to hear and determine the criminal matters.

The Karisa Chengo case therefore brings out the need for additional support to the Judiciary in Kenya on dispensation of justice through clearance of the backlog of cases. The judgment of the Supreme Court of India is therefore jurisprudential in that it expands the area of appointment of ad hoc judges as retired judges can also be appointed as ad hoc judges of High Courts to expedite backlog of cases. The Supreme Court has also gone ahead and given guidelines to aid in the appointments of the retired judges who consent to the appointment. Kenya can therefore learn from the judgment should there be a need to engage the qualified retired judges done in a lawful manner to help in clearance of backlog of cases.

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