The Supreme Court of India has highlighted a significant waste of judicial talent and proposed a concrete solution to address the ever-growing mountain of pending cases in the country's High Courts. On Thursday, the apex court noted that a vast pool of experienced retired High Court judges remains underutilized, and their expertise could be harnessed through reappointment as ad hoc judges to help reduce the spiralling pendency.
The Roadblock: Seniority and Bench Leadership
The court's observation came during a hearing where senior advocate K Parameswaran pointed out a major practical hurdle. He informed a bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi that the seniority of retired judges and the question of who would head benches was preventing High Courts from making recommendations. The concern was whether a sitting judge junior to the reappointed retired judge would have to serve under them.
CJI Surya Kant acknowledged this as a genuine stumbling block, stating he had discovered this issue while interacting with High Court Chief Justices over the past few months. This admission paved the way for a pragmatic modification to earlier orders.
Empowering High Court Chief Justices
To remove this impediment, the Supreme Court bench decided to empower the Chief Justices of the High Courts. In a modification to its order dated January 30, 2024, the court clarified that the Chief Justice would have the discretion to constitute benches and resolve the question of leadership.
"In modification of Jan 30 order, it is clarified that if there are two ad hoc judges appointed in the HC, it will be the prerogative of the CJ to constitute a division bench. Similarly, it will be the discretion of the CJ to constitute a bench consisting of an advocate or a sitting judge wherever necessary and resolve at his level as to who would preside over the bench in the manner as may be agreeable to both judges," the bench stated.
This move is expected to give High Courts the necessary flexibility to move forward with appointments under Article 224A of the Constitution, which allows for such ad hoc appointments with the President's consent.
A Constitutional Remedy for a Mounting Crisis
The legal basis for this initiative is Article 224A of the Indian Constitution. It permits the Chief Justice of a High Court, with the previous consent of the President, to request any person who has previously held the office of a judge of that court or any other High Court to sit and act as a judge. The appointment process for these ad hoc judges would mirror the Collegium system used for regular judges.
Attorney General R Venkataramani, present during the hearing, noted that the existing memorandum of procedure provides a mechanism for such appointments. He assured the court that he would deliberate on any arising issues and report back.
The need for this intervention is underscored by alarming statistics on case pendency. The backlog in High Courts has seen a relentless rise:
- 2015: 38.7 lakh pending cases
- 2021: 57.5 lakh pending cases
- Present: 63.6 lakh pending cases, including nearly 19 lakh criminal cases
The Supreme Court's proactive stance, first through its April 2021 judgment that revived the use of Article 224A, and now through procedural clarifications, signals a serious attempt to leverage experienced judicial manpower. By addressing the administrative and hierarchical concerns head-on, the court hopes to unlock the potential of retired judges and make a dent in the critical backlog that delays justice for millions.
