Anujay Shrivastava & Abhijeet Shrivastava

The authors dissect the Apex Court’s recent Full-Bench judgment in Lok Prahari v. Union of India, where guidelines were issued for the invocation of Article 224-A, which relates to the appointment of ‘ad-hoc’ High Court Judges. The authors argue that the new requirement of the Supreme Court Collegium’s involvement in this process is constitutionally flawed and pragmatically unsound. 

Background

Recently, a Full-Bench of the Supreme Court of India (‘Apex Court’) in Lok Prahari v. Union of India, W.P. (Civ.) No. 1236/2019, had addressed several important aspects concerning the ‘ad-hoc’ appointment of retired judges to High Courts under Article 224-A of the Indian Constitution. The unanimous judgment authored by the former Chief Justice of India (‘CJI’), S.A. Bobde, J. (which was joined by S.K. Kaul, J. and Surya Kant J.) had, inter alia, laid down important guidelines regarding invocation of the power in Article 224-A, which the bench felt would turn Article 224-A into a ‘live letter’ instead of a ‘dormant provision’. However, it is to be noted that the guidelines are in the form of a “continuing mandamus” and the case proceedings are open for the Apex Court to modify these guidelines in the future (¶49, ¶65). The matter has been listed to be heard next in four months. 

Importantly, recording that the reason for invocation of Article 224-A is principally due to non-filling of vacancies and the mounting arrears, the Apex Court in Lok Prahari categorically rejected the Central Government’s submission that appointment of ‘ad-hoc’ judges can only happen after existing regular vacancies at the High Courts are filled (¶42). While the court took a minimalist route in dismissing the foregoing submission, an earlier post by Anujay, which substantially examined the legislative history of Article 224-A and its features, may be referred to for additional reasons supporting this foregoing holding.

The Peculiar Introduction of ‘Collegium Approvals’

Curiously, the holdings in Lok Prahari stated that while exercising the power under Article 224-A, the Chief Justice of the High Court (‘CJHC’) (after taking consent of the retired judge for the ad-hoc appointment), shall have to route the recommendation to the ‘collegium’ of the Apex Court (¶26, ¶44). Here, the term ‘collegium’ refers to the three senior-most judges of the Apex Court (¶26), including the incumbent CJI (and in special circumstances, the CJI Designate). Consequently, the Apex Court has judicially expanded the pre-requisites provided in Article 224-A, to also include a consultation with the Apex Court’s collegium. 

In this post, we shall restrict ourselves to analysing whether the Lok Prahari holding which imposes a requirement on the CJHC to now also obtain recommendation from the Apex Court’s collegium is constitutionally correct. In addition, we shall also attempt to highlight the importance of the CJHC’s autonomy and the potential effects of the Apex Court’s holding.

Does Article 224-A impose a duty on CJHC to obtain the approval of Apex Court’s collegium?

Textually, Article 224-A (as it stood prior to the 99th Constitution Amendment, which was eventually struck down as unconstitutional by the NJAC case) does not expressly require any involvement of the CJI or the collegium of the Apex Court. This is in contrast to the appointment procedure in Article 124, Article 128, Article 217 and Article 224 of the Constitution, which mandate that the President shall have to consult the CJI (where the consultation with the CJI is ‘binding’ after the Nine-Judge Bench decision in the Second Judges case, 1993). This also includes the collegium of three or five senior-most judges as provided in the advisory opinion in the Third Judges case (1998). Consequently, textually, the CJHC is only required to obtain the prior consent of the retired judge proposed to be appointed and the consent of the President, in order to make the appointment. However, some authors have opined that after the Second Judges case, primacy in matters of judicial appointment lies with judiciary, due to which the appointments of ad-hoc judges in Article 128 and Article 224-A should also be governed by the collegium system. 

In Anna Mathew v. N. Kannadasan (2008), the Madras High Court while discussing the provision in Article 224-A, had observed that CJHC while recommending the name of a retired judge was not required to consult the collegium. In order to make this observation, the High Court relied on a Division-Bench decision by the Apex Court in Ashish Handa v. Hon’ble The Chief Justice of Punjab & Haryana High Court (1996) and a Constitution Bench decision in Ashok Tanwar v. State of H.P. (2004). The High Court recorded that Tanwar differed from Handa, “only on the issue whether consultation with the Chief Justice meant consultation with the collegium of the High Court.” Recalling the Constitution Bench’s observation in Tanwar, that consulting the Collegium is not a prerequisite to appointing sitting or ‘retired’ judges, the High Court observed that for appointments such as ad-hoc judges in Article 224-A, the recommendation of CJHC alone is sufficient (along with the two pre-requisites of the prior consent by the retired judge and President). Though the Mathew decision was upheld by Apex Court in N. Kannadasan v. Ajoy Khose (2009), this point of law concerning Article 224-A was not discussed. 

Importantly, as pointed out by Bobde, CJ. in Lok Prahari, both Mathew and Tanwar cases dealt with appointments to Consumer Disputes Redressal Commission under the Consumer Protection Act, 1986. Consequently, the High Court’s view in Mathew against the requirement of consulting the collegium was an obiter dictum and not followed in Lok Prahari (¶18). 

The holding in Lok Prahari

Now, as discussed earlier, the Apex Court in Lok Prahari has held that the recommendation forwarded by the collegium of the High Court headed by CJHC will first have to be routed to the collegium of the Apex Court. Once the Apex Court’s collegium approves of these recommendations, it shall forward them to the Central Government for taking it forward or expressing reservations. Both the collegiums have to ensure that this recommendation process is completed at the earliest. In case the Central Government has any reservations, it is within its right to return the names. However, if on reconsideration, the recommendation of the ad-hoc judges is reiterated, the Central Government would be bound to make the appointment (¶26). Moving forward, the Apex Court in Lok Prahari, mentions that the Constitution did not provide for a collegium system. The collegium system was introduced by the First Judges case (1981), Second Judges case and Third Judges case. After the NJAC case struck down the 99th Constitution Amendment, the position on collegium system as laid in the foregoing cases continues and also applies to ad-hoc appointments under Article 224-A, as per the court (¶44). 

Intent Based Critique

We believe that this holding of the Apex Court is constitutionally flawed for the following reasons. 

First, as pointed earlier, Article 224-A does not textually require “consultation” with either the CJI or the collegium of the Apex Court – as opposed to the provisions on regular appointments.

Second, perhaps most importantly, Article 224-A is a non-obstante clause, writing that it shall apply notwithstanding anything in Chapter V of the Constitution. Now, as mentioned, Article 217 (regular appointments) and Article 224 (additional judges’ appointments) both require ‘consultation’ with the CJI. The absence of this requirement in 224-A must prevail over this general norm of consultation, since it has a non-obstante clause. Importantly, this is also in contrast with Article 128 (ad-hoc appointment of Apex Court Judges), which expressly requires consultation with the CJI. For all these reasons, the involvement of the CJI (i.e., the Apex Court’s Collegium) in ad-hoc appointments is against the text and original intent of Article 224-A.

Third, apart from these textual concerns, none of the above cases discussing the judiciary’s primacy in judicial appointments have outlined the collegium’s involvement vis-à-vis ad-hoc appointments by CJHC. Therefore, the holding in Lok Prahari does not have precedential support. Interestingly, the dissenting opinion rendered by A.M. Ahmadi, J. in the Second Judges case mentions that for such ad-hoc appointments, it is the CJI who can act with the previous consent of the President, instead of the CJHC. However, this dissent does not have precedential value, and it suffers from the same flaws as the Lok Prahari decision. 

Fourth, important pragmatic insights in this regard are found in Senior Advocate Datar’s note, submitted to the Apex Court (¶15), which reads “The retired judges, who are to be recommended/requested, have already been approved at the time of their initial appointment and their suitability to function as judges is no longer in doubt. To refer the recommendations once again to the Supreme Court collegium will not only be unnecessary but will lead to considerable delay and defeat the purpose of Article 224-A.” The note also acknowledges that this is a view shared by the numerous lawyers who participated in this proceeding (¶14).

Consequently, neither the Constitution’s text nor judicial precedents mandate that the CJHC, while exercising the power in Article 224-A for ad-hoc appointments, is constitutionally required to obtain the approval of Apex Court’s collegium. 

Purposive Critique: Best Utilizing Article 224-A

A lot has been spoken thus far as regards the constitutional intent-based unsoundness of this decision. Let us, however, set that aside now. Though it has not acknowledged the above arguments, the court in Lok Prahari at the very outset had outlined its task as making the best possible use of Article 224-A, even it this would contradict its original intent (¶1). That is, the court’s self-determined aim was to tailor Article 224-A to respond to society’s needs. To critique the holding on text and intent alone, therefore, would be an incomplete understanding. The more appropriate question is: has the court in fact provided Article 224-A the most meaningful construction to suit society’s current needs? We think it has not. 

The Impact Of COVID-19

In asserting this view, we take note of the current catastrophic impact of COVID-19 over the courts’ administration. In his recent retirement speech at the Allahabad High Court, Govind Mathur, J. nearly burst into tears, lamenting how he had to spend his last working days from his own residence, as he was COVID-19 positive. In the last week, there have been numerous reports of Judges contracting COVID-19 and being hospitalized, both from the High Courts (here and here) as well as the Supreme Court (with an astounding 15 Judges impacted). One must also consider that most Judges in the higher judiciary are in their late 50s or early 60s, an age group that is characterized as facing greater risks from COVID-19. Unfortunately, many Hon’ble Judges have succumbed to death in their battles against the virus (see here and here). The impact of the Judges’ mental health can only be imagined. In frankness, COVID-19 has shaken the functioning of the High Courts for these reasons and given the halt of physical hearings.

Simultaneously, owed in part to the continued delays by the Centre in giving effect to the Collegium’s recommendations, there currently remain an alarming 416 vacancies across all High Courts in India. This is disconcerting especially considering the fact that even “urgent” cases including bail applications cannot be heard promptly due to increasing judicial backlogs. At such a critical juncture, how does it help to add greater constraints on the process of ad-hoc High Court judge appointments? Putting aside the potential of delays from the President’s end in this process, according to the court in Lok Prahari, even in the best case, the entire procedure is likely to consume three months (¶44). This may not be an onerous duration for ordinary times. However, at such exigent times where High Courts are not even able to satisfactorily discharge their core function of adjudging “urgent” cases, this additional burden will contribute to further delays in administering justice, rather than remedying the situation. This is equally true for the other guidelines the court has mandated, which have not been explored in this post.

Correcting This Defect

As mentioned, the Apex Court’s self-determined task was to utilize Article 224-A to best address societal needs. Evidently, by omitting to distinguish between ordinary and exigent situations where this provision may be used, the court has failed at this task. The silver lining is that because this litigation is in the form of a ‘continuing mandamus’, this omission can soon be corrected. Thus, we propose the following modification to the court’s guidelines. 

Notwithstanding intent-based arguments, its guidelines as they stand may serve well during ordinary times (that is, when courts are not faced with exigencies resembling COVID-19). This is especially true if the purpose for appointing the ad-hoc Judge happens to be resolving a particular dispute with their unique expertise. This was the case when a Madhya Pradesh High Court ad-hoc Judge was appointed to adjudge certain election petitions. An ad-hoc Judge was even appointed in respect of the Ayodhya Temple litigation. Cases like these may involve a high stake of public interest where the Apex Court Collegium’s oversight in the selection of Judges may be important for accountability concerns. The guidelines may also help ensure that recommendations for regular appointments are not stalled because of the potential excessive use of Article 224-A (even when the object of such appointment is addressing increased arrears). Thus, there may be positive results of the new guidelines specifically during ordinary times.

However, in contrast to this, the point of invoking Article 224-A during times of extreme distress such as now would primarily be to ensure that the core functions of the High Courts are not hampered. It is against public interest to enforce the long-drawn Collegium recommendation process when the health and well-being of most Judges itself is at risk. This would in effect lead to the denial of justice to litigants such as bail applicants who could otherwise have been attended to by ad-hoc Judges. Moreover, these Judges, given their experiences, are likely to discharge their duties more efficiently than newly appointed Judges who would be less accustomed to courts’ burdens. 

Consequently, in its next order in Lok Prahari, we submit that the Apex Court must create separate guidelines for ad-hoc appointment of High Court Judges in times of such distress, and for such situations, withdraw this new requirement of routing recommendations through the Collegium (as well as other guidelines that may be dispensed with). Permitting autonomy to High Courts at least during such crises would be in furtherance of the prompt delivery of justice, which is not only a societal need that the court ought to heed per its own objective, but also the constitutional right of all litigants.

Anujay is a law graduate (class of 2020) from Jindal Global Law School, O.P. Jindal Global University, Sonipat.

Abhijeet is a third-year law student at Jindal Global Law School, O.P. Jindal Global University, Sonipat.

Image Source: Bar&Bench