Judges Pro Tem

Context: Roping in retired HC judges to clear backlog should not be at the cost of regular appointments.

Background: The Supreme Court’s decision to invoke a “dormant provision” in the Constitution (Article 244A) to clear the way for the appointment of retired judges as ad hoc judges to clear the mounting arrears in the various High Courts is an indictment of the extraordinary delay in filling judicial vacancies.

• Article 244A entrusts powers for appointment of Ad hoc Judges in High Court with the Chief Justice of High Court (with previous consent of President).
• As the provision has been utilised only sparingly in the past, and for the limited purpose of disposing of particular kinds of cases, the endeavour to appoint ad hoc judges have some attached guidelines -
  • Appointment will be when the vacancies go beyond 20% of the sanctioned strength, or when more than 10% of the backlog of pending cases are over five years old;
  • when cases in a particular cate­ gory are pending for over five years, or when the rate of disposal is slower than the rate of institution of fresh cases.

Need for invoking Article 244A

• Mounting arrears of cases: Backlog of over 57 lakh cases in High Courts. Five High Courts account for 54% of these cases.
• Faultline’s in judicial appointments system: Memorandum of Procedure is not finalised, collegium system issues persist, and Centre’s tardiness in moving recommendations.
• Act as a ‘’transitory methodology’ and does not constrain the regular appointment process.

Counterargument to the invocation of Article 244A

• No relation between vacancy and backlog: Madras High Court has 5.8 lakh cases pending against a relatively low level of vacancy at 7% whereas, 44% of posts in Calcutta High Court are vacant, but cases in arrears stand at 2.7 lakh.

Way Forward:

• The government would do well to expedite the regular appointment process from its end and give up its propensity to hold back some recommendations selectively.
• The judiciary should ensure that only retired judges with experience and expertise are offered temporary positions, and there is no hint of favouritism.