Anujay Shrivastava

The author examines whether ‘ad-hoc’ appointments of retired judges under Article 224-A of the Constitution can only happen after the existing vacancies at High Courts have been filled. Examining the legislative history of Article 224-A, the author concludes that ‘ad-hoc’ appointments are not subject to filling of vacancies under Article 217 of the Constitution. The question is currently pending before the Hon’ble Supreme Court, to be heard on the 15th of April, 2021.

Introduction:

Recently, a Full-Bench of the Supreme Court of India (‘Apex Court’) headed by the Chief Justice of India, S.A. Bobde, J. (also comprising of S.K. Kaul, J. & Surya Kant, J.) was reported to discuss the issue of huge pendency of cases across High Courts (‘HC’), during the hearings in Lok Prahri v. Union of India, W.P. (Civ.) No. 1236/2019 (Pending) (‘Lok Prahri’). In order to deal with the issue, the Apex Court opined that the best solution is appointment of ‘ad-hoc’ judges under Article 224-A of the Constitution. In an oral dictation, it laid down prospective guidelines for appointment and functioning of an ad-hoc judge appointed under Article 224-A. At least fourteen High Courts have been reported to have agreed with the Apex Court’s suggestion. 

Reportedly, the Central Government informed the Apex Court that the appointment of additional judges on an ad-hoc basis under Article 224-A can only be done after filling up of the regular vacancies of judges at the High Court under Article 217 of the Constitution. While the Central Government did not provide exhaustive reasons to buttress this submission, it argued that this was due to the ‘legislative intent’ of Article 224-A. 

Legislative History of Article 224-A:

• Position prior to the Seventh Amendment

The original provision in Article 224 of the Constitution provided for appointment of ‘ad-hoc’ judges. Notably, the text of the unamended Article 224 and Article 224-A is identical. Six years after the Constitution was adopted, The Constitution (Seventh Amendment) Act, 1956 (‘Seventh Amendment’) had substituted the original provision by introducing a new provision that instead provided for “appointment of additional judges to clear off arrears and for the appointment of acting judges in temporary vacancies”. In Clause 14 of the Statement of Objects of Reasons to the Seventh Amendment, the Parliament recorded that the original provision in Article 224 had been found to be neither adequate nor satisfactory. 

• Insertion of Article 224-A into the Constitution

Article 224-A was introduced by a constitutional amendment via The Constitution (Fifteenth Amendment) Act, 1963 (‘Fifteenth Amendment’). Unlike other provisions introduced by the Fifteen Amendment, the Statement of Objects and Reasons are silent on why Article 224-A was introduced in the Constitution. However, it is clear that the constitutional amendment intended to reintroduce the original provision of Article 224 which had been repealed by the Seventh Amendment, as a separate provision in addition to Article 224 (as substituted by the Seventh Amendment). 

Article 224-A empowers the Chief Justice of a High Court for any state to appoint a ‘retired’ High Court Judge to ‘sit’ and ‘act’ as a judge of that High Court. Remarkably, Article 224-A starts with a ‘non-obstante’ clause which provides that nothing contained in Chapter V of Part VI (provisions relating to High Courts) shall affect its exercise. There are two necessary pre-requisites for appointment under Article 224-A: first, the consent of the retired Judge is mandatory; and second, the consent of the President of India has to be previously obtained by the Chief Justice.  

The ‘ad-hoc’ judge appointed under this provision can be from the same High Court or a different High Court. Moreover, while an ad-hoc judge shall have all the jurisdiction, powers and privileges of a regular judge of the High Court, they shall not be otherwise ‘deemed’ to be a judge (member) of that High Court (i.e. they shall not be treated as a ‘sitting’ judge under Article 217 of the Constitution). Consequently, by effect of the legal fiction created by the word ‘deemed’, they will not be subject to provisions that affect sitting judges. This was confirmed by a Constitution Bench in Krishnagopal v. Shri Prakashchandra and Ors. (1974). H.R. Khanna, J. who wrote the unanimous judgment in Krishnagopal (Supra) illustrated this by stating that an ‘ad-hoc’ judge appointed under Article 224-A cannot be transferred like other judges of the High Court using the power in Article 222 of the Constitution. 

 An ‘ad-hoc’ judge is also entitled to allowances determined by the President of India. Notably, the text of Article 224-A does not mention either a ‘time limit’ or a limit for the number of times a retired judge can be appointed as an ad-hoc judge to a High Court. Moreover, there is no upper ceiling on the ‘age’ of a retired judge who can be appointed under Article 224-A. Further, Article 224-A uses the language “[…] any person who has held the office of a Judge..” (emphasis mine), which implies that any judge who had voluntarily ‘resigned’ or has been ‘removed from office’ by the President of India under Article 217(b) of the Constitution prior to retirement is eligible for appointment as an ad-hoc judge. In addition, there is no mention in Article 224-A about appointing a judge with ‘expertise’ in specific fields of law as an ad-hoc judge. Consequently, whether a retired judge should be appointed for their subject expertise in an area of law is completely within the subjective discretion of the Chief Justice. 

• The NJAC Amendment

The text of Article 224-A was amended by The Constitution (Ninety-ninth Amendment) Act, 2014, which is famously known as the National Judicial Appointments Commission Amendment (‘NJAC Amendment’). The NJAC Amendment transferred the power to appoint ad-hoc judges from the Chief Justice of the High Court to National Judicial Appointments Commission (‘NJAC Committee’), if a reference for appointment was made by Chief Justice of the High Court to the NJAC Committee and the two pre-requisites discussed previously are met. 

In the Constitution Bench decision in Supreme Court Advocates-on-Record Association v. Union of India (2015) (‘NJAC decision’), the NJAC Amendment was declared unconstitutional by a majority of 4:1 (with Jasti Chelameswar, J. dissenting). Consequently, Article 224-A continues to follow the original text as introduced by the Fifteen Amendment. 

Does Article 217 impose any limitations on the exercise of Article 224-A?

The procedure to appoint a Judge of the High Court and their conditions of office are provided under Article 217. Article 217 has been subject to several amendments (in particular, the Seventh Amendment, the Fifteenth Amendment, Forty-second Amendment, Forty-fourth Amendment and the NJAC Amendment). Similar to the amendments made to Article 224 and Article 224-A, Article 217 was amended by the NJAC Amendment to empower the NJAC Committee to make appointments of judges to the High Court. Subsequent to the NJAC decision (Supra), the effect of the earlier provision in Article 217 as amended until the Forty-fourth Amendment continues. Prior judicial decisions relevant to understand the judicial interpretation of Article 217 have been discussed by Mehta in an earlier post. 

As per the submission of the Central Government in Lok Prahri (Supra), the Chief Justice of a High Court is incapable of exercising the provision to appoint ‘ad-hoc’ judges unless all the vacancies in the High Court are filled by exercising the power to appoint judges under Article 217. Consequently, the Central Government is trying to argue that Article 217 imposes a limitation on Article 224-A. For the reasons that follow, I argue that this argument does not hold water. 

First, at the outset, it is important to note that neither Article 217 nor Article 224-A make any references to the other provision, even after all the constitutional amendments made to the provisions. Therefore, Article 217 does not expressly or impliedly impose any textual limitations on exercise of the provision in Article 224-A. Second, as Article 224-A is an identical reintroduction of the original provision in Article 224 (prior to its substitution by the Seventh Amendment), it is clear that Article 217 and the power to appoint ‘ad-hoc’ judges existed concomitantly, after the Constitution was introduced and became effective. Third, importantly, the fact that Article 224-A contains a ‘non-obstante’ clause (which excludes the effect of all provisions in Chapter V of Part VI of the Constitution, including Article 217), is a clear proof that there is no constitutional bar on exercising the power in Article 224-A. The effect of the ‘non-obstante’ clause was reaffirmed in Krishnagopal (Supra). 

Consequently, the fact that there exist vacancies in the High Court which have not been filled as per the procedure in Article 217, does not preclude the Chief Justice of a High Court to exercise the power in Article 224-A. 

Conclusion:

In light of the above analysis, it has been established that the Central Government’s submission that appointment of ‘ad-hoc’ judges should not be made until all the regular vacancies at the High Courts are filled is legally unsustainable. There is no doubt that there exists a huge vacancy in number of judges in the High Courts across India. However, as succinctly pointed out by Kaul, J. in Lok Prahri (Supra), the purpose of having ad-hoc judges appointed is to ensure that judicial work at the High Court does not suffer, while there are pending vacancies of judges. Lok Prahri (Supra) has presented an important opportunity to the Apex Court in deciding the guidelines for appointment of ‘ad-hoc’ judges which are compatible with Article 224-A. 

The fact that there is no involvement of the Apex Court’s collegium in the appointment of ad-hoc judges (which is a power provided to the Chief Justice of the High Court), means that not only is the pending judicial work temporarily dealt with by an experienced judge (who had retired as the judge of a High Court and potentially has a subject matter expertise beneficial to dealing with the pending cases), it also reduces the workload on constitutional functionaries such as the collegium and the executive, allowing them to focus on filling the vacancies of the High Court. Notably, the 124th Law Commission Report had recommended greater invocation of Article 224-A to prevent pendency of judicial work. Moreover, given the impact of COVID-19 pandemic, India would surely benefit if experienced ad-hoc judges are appointed to deal with pending judicial work at the High Courts. 

It is also worth mentioning that judicial appointments, including those required to fill vacancies at High Courts, are often delayed due to the actions of the executive itself. A Division-Bench of the Apex Court in Sunil Samdaria v. Union of India (2018), had recorded that even after the names of proposed judges are forwarded to the executive, they remain pending for unduly long times (which may even go beyond an year), before the executive reverts back with its approval and inputs on the proposed judges to the collegium. The Central Government’s failure to clear the name of the Senior Advocate Saurabh Kirpal for elevation as a judge of the Delhi High Court for over four years is such an example. Thus, the Central Government needs to introspect its role as a constitutional functionary and needs to speed up its decision-making process.

The author is a graduate of the Jindal Global Law School (JGLS), O.P. Jindal Global University (Class of 2020).

Image Courtesy: LiveLaw