# LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS

- **Citation:** [2021] 3 S.C.R. 317
- **Court:** Supreme Court of India
- **Decided:** 2021-04-20
- **Bench:** S. A. Bobde, Sanjay Kishan Kaul, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lok-prahari-through-its-general-secretary-s-n-shukla-ias-retd-v-union-of-india-34988
- **Pages:** 34

## Headnote

Constitution of India:
Art. 224A - Appointment of retired judges at sittings of High
Courts - Pendency of 57 lakhs cases in the High Courts along
with consistent ratio of vacancies of almost 40 per cent - Held:
Recourse to Art. 224A by appointment of ad hoc judges needed - It
would provide a ready-made pool of known judicial talent to deal
with the disposal of pending old cases - Certain checks and balances
to be provided for resorting to Art. 224A - Guidelines on aspects
such as, the trigger point to activate the provision, suggestion of an
embargo situation, pre-recommendation process, the methodology
of appointment, time to complete the process, tenure of
appointment, the number of appointments, the role of ad hoc Judges,
emoluments and allowances, etc. to be arrived so as to facilitate
some element of uniformity - Since periodic review would be
required to suitably modify the guidelines proposed, concept of
continuing mandamus would be appropriate - Thus, issuance of
guidelines for invocation of Art. 224A.
Arts. 217, 224 and 224A - Appointment of permanent and
additional Judges, and ad hoc judges in the High Court - Process
to be followed - Explained.
Art. 224 - Objective of - Explained.
Art. 224A - Historical perspective - Explained.
Constitutional jurisprudence - Continuing mandamus -
Concept of - Held: "Continuing mandamus" is a practice of issuing
continuing directions to ensure effective discharge of duties - Unlike
a writ remedy, a continuing mandamus is an innovative procedure
[2021] 3 S.C.R. 317
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not a substantive one which allows the Court an effective basis to
ensure that the benefits of a judgment can be enjoyed by the rightbearers, and its realisation is not hindered by administrative and/or
political recalcitrance - It is a means devised to ensure that the
administration of justice translates into tangible benefits.
Issuing guidelines and further listing the matter, the Court
HELD: 1.1 It is trite to say that there is a docket explosion
in our country and that it is difficult for adjudication to take place
within a reasonable period of time. This crisis situation must be
tackled. Some innovation is always the rule of the game. In the
present context, maybe a slightly different view has to be taken
in respect of the avowed purpose of Article 224A of the
Constitution of India providing for ad hoc judges. It is said so as
this Court is faced with the ground reality of almost 40% vacancies
remaining in the regular appointments (both permanent and
additional judges) over the last two years. A number of vacancies
arising every year are barely filled in by fresh appointments. Thus,
it remains an unfulfilled challenge to bring the appointment
process to such numbers as would be able to cover the vacancies
existing and arising. [Para 20][336-A-C]
1.2 The present system of appointments as envisaged by
the Constitution and as elucidated in the Collegium system makes
it clear that the first step is a recommendation from that High
Court by a collegium of the three senior-most judges presided
over by the Chief Justice of the High Court. This process in turn
requires wide consultation by the Chief Justice of the High Court
to identify the requisite talent, so as to make the
recommendations. Contrary to some portrayed beliefs as if this
is an extremely subjective system, every Chief Justice is actually
required to solicit names from different sources whether it be
sitting judges, retired judges, or prominent members of the Bar.
It is from this pool of talent that he selects, after a discussion
before the collegium, the most suitable candidates. It is thus, of
utmost importance that the flow of recommendations continues
for the appointment process to work successfully. The vacancies
existing and arising are always known, as a judge demits office in
the High Court on his 62nd birthday. The only exception can be
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an unforeseen eventuality or an e

## Text

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LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N.
SHUKLA IAS (RETD.)
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 1236 of 2019)
APRIL 20, 2021
[S. A. BOBDE,CJI, SANJAY KISHAN KAUL AND
SURYA KANT, JJ.]
Constitution of India:
Art. 224A - Appointment of retired judges at sittings of High
Courts - Pendency of 57 lakhs cases in the High Courts along
with consistent ratio of vacancies of almost 40 per cent - Held:
Recourse to Art. 224A by appointment of ad hoc judges needed - It
would provide a ready-made pool of known judicial talent to deal
with the disposal of pending old cases - Certain checks and balances
to be provided for resorting to Art. 224A - Guidelines on aspects
such as, the trigger point to activate the provision, suggestion of an
embargo situation, pre-recommendation process, the methodology
of appointment, time to complete the process, tenure of
appointment, the number of appointments, the role of ad hoc Judges,
emoluments and allowances, etc. to be arrived so as to facilitate
some element of uniformity - Since periodic review would be
required to suitably modify the guidelines proposed, concept of
continuing mandamus would be appropriate - Thus, issuance of
guidelines for invocation of Art. 224A.
Arts. 217, 224 and 224A - Appointment of permanent and
additional Judges, and ad hoc judges in the High Court - Process
to be followed - Explained.
Art. 224 - Objective of - Explained.
Art. 224A - Historical perspective - Explained.
Constitutional jurisprudence - Continuing mandamus -
Concept of - Held: "Continuing mandamus" is a practice of issuing
continuing directions to ensure effective discharge of duties - Unlike
a writ remedy, a continuing mandamus is an innovative procedure
[2021] 3 S.C.R. 317
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not a substantive one which allows the Court an effective basis to
ensure that the benefits of a judgment can be enjoyed by the rightbearers, and its realisation is not hindered by administrative and/or
political recalcitrance - It is a means devised to ensure that the
administration of justice translates into tangible benefits.
Issuing guidelines and further listing the matter, the Court
HELD: 1.1 It is trite to say that there is a docket explosion
in our country and that it is difficult for adjudication to take place
within a reasonable period of time. This crisis situation must be
tackled. Some innovation is always the rule of the game. In the
present context, maybe a slightly different view has to be taken
in respect of the avowed purpose of Article 224A of the
Constitution of India providing for ad hoc judges. It is said so as
this Court is faced with the ground reality of almost 40% vacancies
remaining in the regular appointments (both permanent and
additional judges) over the last two years. A number of vacancies
arising every year are barely filled in by fresh appointments. Thus,
it remains an unfulfilled challenge to bring the appointment
process to such numbers as would be able to cover the vacancies
existing and arising. [Para 20][336-A-C]
1.2 The present system of appointments as envisaged by
the Constitution and as elucidated in the Collegium system makes
it clear that the first step is a recommendation from that High
Court by a collegium of the three senior-most judges presided
over by the Chief Justice of the High Court. This process in turn
requires wide consultation by the Chief Justice of the High Court
to identify the requisite talent, so as to make the
recommendations. Contrary to some portrayed beliefs as if this
is an extremely subjective system, every Chief Justice is actually
required to solicit names from different sources whether it be
sitting judges, retired judges, or prominent members of the Bar.
It is from this pool of talent that he selects, after a discussion
before the collegium, the most suitable candidates. It is thus, of
utmost importance that the flow of recommendations continues
for the appointment process to work successfully. The vacancies
existing and arising are always known, as a judge demits office in
the High Court on his 62nd birthday. The only exception can be
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an unforeseen eventuality or an elevation to the Supreme Court
of India. Thus, every endeavour has to be made to see that the
recommendations are made well in advance while maintaining a
balance between recommendations from the Bar and the
subordinate judiciary, about six months in advance as per norms
which were thought to be the appropriate time period within which
the whole process of appointment ought to be concluded. [Para
21][336-D-H]
1.3 On the basis of talent available; considering that the
age profile for elevation from the Bar is between 45 to 55 years,
there may be situations where at one go all recommendations
against vacancies may not be possible to be made. However
nothing prohibits - or rather the exigencies of the appointment
process requires - recommendations to be periodically made
without unnecessarily waiting for the outcome of the first set of
recommendations. If this continuing pipeline operates and even
if some recommendations fall by the wayside, over a reasonable
period of time the vacancies can be filled up. The current situation
of vacancies, especially in some of the larger courts with very
few recommendations in the pipeline seems to be the genesis of
this problem. [Para 22][337-A-C]
1.4 One of the most important administrative functions of
the Chief Justice of the High Court is to identify suitable
candidates for elevation as judges of the High Court and make
recommendations in turn. The pipeline of recommendation of
Judges has to be kept flowing so as to cover vacancies. Once the
recommendation is made, opinions of State Governments are
solicited as also the input from the Intelligence Bureau. The
recommendations are then processed by the Central Government
in all manners, before they are put up to the collegium of the
Supreme Court of India. This is another area of some concern as
there have been many cases which have remained pending for
long periods of time - though in view of certain queries posed in
these judicial proceedings, the situation has now improved. In
normal circumstances, the total time period before names are
forwarded to the Supreme Court collegium should not exceed
four months after the recommendations are made by the collegium
of the High Court. [Paras 24, 25][338-B-E]
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1.5 The Supreme Court collegium, which is the first three
judges, thereafter bestows its consideration on these names after
obtaining the opinions of the consultee judges. Those names which
find approval of the collegium are then recommended for
appointment to the Union of India. At that stage, the Government
either proceeds to appoint the judges or it may have some
reservations, in which case it would be within their right to return
the recommendations with the reservations they have over the
appointment. On reconsideration, if the recommendation is
reiterated, in terms of the prevalent legal position, the
appointment has to be made. The delays in this is a matter of
concern as the recommendation of the collegium should not
remain pending for a long period of time. The said process should
be completed at the earliest. In some of the courts it is a challenge
to persuade competent and senior lawyers who may have large
practices to accept the position of the judge, and the pendency of
their names for a long period of time does little to encourage
them. The fact remains that the said process has not resulted in
filling up of vacancies for many years. It is not as if the vacant
posts are a small fraction, as it is noticed that they have been
hovering around the figure of 40% vacancies. [Paras 26, 27][338E-H; 339-A]
1.6 There is little doubt that challenge of mounting arrears
and existing vacancies requires recourse to Article 224A of the
Constitution to appoint ad-hoc judges which is a ready pool of
talent, (of course subject to their concurrence) as a methodology
especially for clearing the old cases. The existing strength of
permanent and additional judges can be utilized for current and
not so old cases. The ad-hoc judges are absolved even from the
administrative responsibilities. They can concentrate on old cases
which are stuck in the system and may require greater
experience. The very provision makes it clear that it does not in
any way constrain or limit the regular appointment process and
consent of the retired judge is sought to sit and act as a judge of
the High Court. One may say that this is largely a transitory
methodology till all the appointment processes are in place,
though that may not be the only reason to take recourse to the
said Article. [Para 40, 42][342-E-F; 343-B-C]
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1.7 This Court would not like to encourage an environment
where Article 224A is sought as panacea for inaction in making
recommendations to the regular appointments. In order to
prevent such a situation, certain checks and balances must be
provided so that Article 224A can be resorted to only on the
process having being initiated for filling up of the regular vacancies
and awaiting their appointments. Thus, there should not be more
than 20% of the vacancies for which no recommendation has
been made for this Article to be resorted to. This figure is placed
looking to the entire scenario where sometimes it may be difficult
to find the requisite talent at a particular stage which may have to
await some time period. However, certainly, it cannot be
countenanced that no or very few recommendations are made for
a large number of vacancies by resorting to Article 224A. [Para
43][343-C-E]
1.8 The collegium of the Supreme Court has an important
role to play in the appointment of judges of the High Court. In
the said 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 has to be routed through the collegium
of the Supreme Court. Of course, the previous consent of the
President of India (as advised) is necessary - but looking to the
very nature of this appointment, which is of a retired judge who
for his judicial appointment has gone through the complete process,
time period of maximum three months is more than sufficient to
carry the process through all stages. This in turn would be
facilitated if the Chief Justice of the High Court takes the initial
steps at least three months in advance so that there is no
unnecessary delay in this regard. [Para 44][344-A-C]
SP Gupta v. Union of India [1982] 2 SCR 365; Supreme
Court Advocates on Record v. Union of India (1993) 4
SCC 441 : [1993] 2 Suppl. SCR 659; Re: Special
Reference 1 of 1998 AIR 1999 SC 1 : [1998] 2 Suppl.
SCR 400; Supreme Court Advocates-on-Record
Association and Anr. v. Union of India 2015 11 SCALE
1 - referred to.
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1.9 There is 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 arise under
Article 217 of the Constitution of India and the appointment has
to be by the President by warrant under his hand and seal (Article
224 refers to the appointment of Additional and acting Judges).
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 of
India begins with a non obstante clause and provides for the Chief
Justice of a High Court to request any person who has 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 is to inform the Chief Justice of the
High Court and to issue necessary notification in the Gazette of
India as per the MoP. The MoP has been framed under an
administrative discussion and cannot be said to be law declared
by this Court. It can always be varied. [Para 45][344-D-G]
1.10 In carrying out the said 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 is the time period for which the person
has to be so appointed. This in turn will depend on the data of
pendency of the different nature of cases, and the expertise of
the judge especially in the areas where there is a large volume of
pendency - as the objective is to clear the old cases which are
stuck in the system. Such consideration of objective criteria
becomes necessary to have transparency in the system. [Para
46][344-G-H; 345-A-B]
1.11 On the aspect of allowances as admissible to an adhoc judge to be determined by the President of India, it is trite to
say that despite the voluntary nature of work no one would like
to accept allowances less than what are 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 can be the only methodology it is
considered appropriate to follow. [Para 48][345-C-D]
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1.12 A Common theme of the various suggestions placed
is that there is a definitive need for activating the provision. There
are differences of perception with respect to different aspects
such as, the trigger point to activate the provision, suggestion of
an embargo situation, the methodology of appointment, the role
of ad hoc Judges, age limit, tenure of appointment, etc. A common
need has been felt to give guidelines to facilitate some element
of uniformity in taking recourse to this dormant provision. It is
also a common ground, with which it is agreed, that while laying
down guidelines, a periodic review of this experiment would be
required and there may be occasions to suitably modify the
guidelines which are proposed to be laid down. Thus, it would
not be appropriate to close the present proceedings but instead
a concept of continuing mandamus would be appropriate in the
present proceedings to work out the most effective method of
taking recourse to Article 224A of the Constitution. [Para
49][345-E-G]
1.13 The principle of continuing mandamus forms part of
the Constitutional jurisprudence and the term was used for the
first time in Vineet Narain v. Union of India's case. 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 is an innovative procedure not a
substantive one which allows the Court an effective basis to
ensure that the fruits of a judgment can be enjoyed by the rightbearers, and its realisation is not hindered by administrative and/
or political recalcitrance. It is a means devised to ensure that the
administration of justice translates into tangible benefits. [Para
50][345-H; 346-A-B]
Vineet Narain v. Union of India (1998) 1 SCC 226 :
[1997] 6 Suppl. SCR 595 - relied on.
1.14 While emphasising that recourse to Article 224A is
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'. It might be
noticed that it is a common case that the present proceedings
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are not adversarial but a method to make the provisions of Art.
224A into a practical and working arrangement. [Paras 51,
52][346-C-D, E]
2. Guidelines:
i. Trigger Point for activation:
The discretion of the Chief Justice of the High Court under
Article 224A is not constrained but as stated, some general
guidelines are required to be laid so that power conferred under
the said provision is exercised in a transparent manner. The
Trigger Point cannot be singular and there can be more than one
eventuality where it arises-if the vacancies are more than 20%
of the sanctioned strength, the cases in a particular category
are pending for over five years, more than 10% of the backlog
of pending cases are over five years old, the percentage of the
rate of disposal is lower than the institution of the cases either
in a particular subject matter or generally in the Court, even if
there are not many old cases pending, but depending on the
jurisdiction, a situation of mounting arrears is likely to arise if
the rate of disposal is consistently lower than the rate of filing
over a period of a year or more. [Para 53][346-F-H; 347-A-C]
ii. Embargo Situation
Recourse to Article 224A is not an alternative to regular
appointments. It is clarified that if recommendations have not
been made for more than 20% of the regular vacancies then
the trigger for recourse to Article 224A would not arise. The
data placed before this Court would suggest that there are
only ten High Courts having fewer than 20% vacancies as on
1.4.2021; seven High Courts having fewer than 10% vacancies
in permanent appointments but then there may be additional
Judges and there are cases which are in the pipeline. Thus,
the parameter adopted is that, at least, the recommendations
should have been made leaving not more than 20% vacancies
in order to take recourse to Article 224A. [Paras 54,55][347C-E]
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iii. 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 is to clear the backlog. The Chief Justice should
prepare a panel of Judges and former Judges. This would be
in respect of Judges on the anvil of retirement and normally
Judges who have recently retired preferably within a period
of one year. However, there can be situations where the Judge
may have retired earlier but his expertise is required in a
particular subject matter. There may also be a scenario where
the Judge(s) may 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. [Para 55][347-F-H; 348-A]
iv. Methodology of Appointment:
Para 24 of the MoP lays down a procedure for appointment
under Article 224A. It is not law laid down in this behalf under
Article 141 of the Constitution but as a first step it may be
more appropriate to follow this procedure laid down in para 24
of the MoP to see the progress made and impediments, if any.
Since the Judges are already appointed to the post through a
warrant of appointment, the occasion to refer the matter to
the IB or other agencies would not arise in such a case, which
would itself shorten the time period. [Para 56][348-B-C]
v. Time to complete the process:
The requirement that recommendations should be made
six months in advance by the Chief Justice of the High Court
emanates 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. 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,
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thus, ideally a Chief Justice should start the process three
months in advance for such appointment. [Para 57][348-D-E]
vi. Tenure of Appointment:
The tenure for which an ad hoc Judge is appointed may
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 are appointed, generally the appointment should
be for a period between two to three years. [Para 58][348-FG]
vii. 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. However, it is clarified that an ad hoc Judge(s)
would not be part of the sanctioned strength of Judges of the
High Court to which they are appointed. [Para 59][348-G-H]
viii. Role of ad hoc Judges:
a. The primary objective being to deal with long pending
arrears, the said objective would be subserved by assigning more
than five year old cases to the ad hoc Judges so appointed.
However, this would not impinge upon the discretion of the Chief
Justice of the High Court, if exigencies so demand for any
particular subject matter even to deal with the cases less than
five years old, though the primary objective must be kept in mind.
It is further clarified that an ad hoc Judge would not be entrusted
any administrative work, as such entrustment would defeat the
very purpose of appointment of ad hoc Judge(s), which is to clear
the backlog of old cases. [Para 60][349-A-C]
b. As regards the issue 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
present, may be constituted only of ad hoc Judges because these
are old cases which need to be taken up by them. It is made
clear that because of the very nature of the profile and work to be
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carried out by 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. [Para 61][349-C-D]
ix. Emoluments and Allowances:
a. 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. This is necessary to
maintain the dignity of the Judge as also in view of the fact that
all other legal work has been prohibited 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 is clarified that it is a misconceived notion that there would be
an additional burden on the State Government if some perquisites
are made available to ad hoc Judges by the State Government.
The trigger for appointment of ad hoc Judges is the very existence
of vacancies and had these vacancies been filled in, the State
Government would have incurred these expenses anyhow. In any
case there is a limit placed on the number of ad hoc Judges and,
thus, the existence of vacancies actually results in the savings for
the State Government(s), which would otherwise be amount
expended as their allowances and perks. [Paras 62-63][349-EH; 350-A]
b. It is made clear that when reference is made to allowance/
perks/perquisites all benefits as are admissible to the permanent/
additional Judge(s) would be given to the ad hoc Judge(s). For
clarity it is said that as far as housing accommodation is 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 are
admissible to the permanent/additional Judges. The Second
Schedule, Part D of the Constitution of India stipulates the
emoluments and benefits that have to be conferred on the judges
of the Supreme Court and of the High Courts. [Para 64][350-AC]
3. The first step is taken with the hope and aspiration that
all concerned would co-operate and retiring/retired Judges would
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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, there will be endeavour resolve
them out. The apprehensions, if any, must be set aside to chart
this course and there will be a way forward. In view of the
requirements of a continuous mandamus to see how a beginning
has been made, the matter is listed after four months calling upon
the Ministry of Justice to file a report in respect of the progress
made. [Paras 65-66][350-D-E]
Krishan Gopal v. Shri Prakash Chandra & Ors. (1974)
1 SCC 128 : [1974] 2 SCR 206; Justice P Venugopal v.
Union of India and Ors. (2003) 7 SCC 726 : [2003] 3
Suppl. SCR 286; Union of India v. Sankalchand
Himatlal Sheth (1977) 4 SCC 193 : [1978] 1 SCR 423;
Anna Mathew v. N. Kannadasan 2009 (1) LW 87 (Mad)
47); Ashok Tanwar and Anr. v. State of H.P. and Others
(2005) 2 SCC 104 : [2004] 6 Suppl. SCR 1065; Indian
Society of Lawyers v. President of India (2011) 5 All
LJ 455 (FB); Supreme Court Advocate-on-Record
Association v. Union of India (1993) 4 SCC 441 : [1993]
2 Suppl. SCR 659; Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (NJAC case) (2016)
5 SCC 1 : [2015] 13 SCR 1 - referred to.
Constituent Assembly Debates Vol. VIII, 181; 124th
report of the Law Commission; 79th Report of the Law
Commission of 1979; 188th Report of the Law
Commission of 2003; A. M. Singhvi, "Beating the
Backlog Reforms in Administration of Justice in
India," in S. Khurshid et. al., (eds.) Judicial ReviewProcess, Powers, and Problems (Essays in Honour of
Upendra Baxi), (Cambridge University Press 2020),
page 53 - referred to.
Case Law Reference
[1974] 2 SCR 206
referred to
Para 15
[2003] 3 Suppl. SCR 286
referred to
Para 16
[1978] 1 SCR 423
referred to
Para 17
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E
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329
[2004] 6 Suppl. SCR 1065
referred to
Para 18
[1993] 2 Suppl. SCR 659
referred to
Para 30
[2015] 13 SCR 1
referred to
Para 31
[1982] 2 SCR 365
referred to
Para 44
[1993] 2 Suppl. SCR 659
referred to
Para 44
[1998] 2 Suppl. SCR 400
referred to
Para 44
(2015) 11 SCALE 1
referred to
Para 44
[1997] 6 Suppl. SCR 595
relied on
Para 50
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1236
of 2019.
(Under Article 32 of The Constitution of India)
Petitioner in person.
K.K. Venugopal, AG, R.S. Suri, ASG, Atmaram NS Nadkarni,
Gaurav Pachnanda, Ravindra Shrivastava, Arvind P. Datar, Vijay
Hansaria, Ajit Kumar Sinha, R. Basant, Soumya Chakraborty, Vikas
Singh, Sr. Advs., B.K. Satija, Rajat Nair, Ms. Neela Kedar Gokhle,
Gurmeet Singh Makkar, D.L. Chidananda, Salvador Santosh Rebello,
Alok Kumar Pandey, Ashwin Kumar D.S, Ms. Preetika Dwivedi,
Divyakant Lahoti, Parikshit Ahuja, Ms. Praveena Bisht, Ms. Madhur
Jhavar, Ms. Vindhya Mehra, Kartik Lahoti, Ms. Shivangi Malhotra,
Jaigopal Saboo, Romy Chacko, Shakthi Chand Jaidwal, Aniruddha
P. Mayee, Sahil Tagotra, Ms. Avni Sharma, V. N. Raghupathy, Md. Apzal
Ansari, Sharan Thakur, Mahesh Thakur, Siddhartha Thakur, Arjun Garg,
Ms. Shrutika Garg, Sibo Sankar Mishra, Ashok Kumar Singh, Rajiv Sinha,
Niranjan Sahu, Umakant Mishra, Kunal Chatterji, Ms. Maitrayee
Banerjee, Pravar Veer Misra, Gopal Singh, Harpreet Singh Gupta, Vidur
Dwivedi, Mukul Kumar, Ms. Uttara Babbar, Manan Bansal, Ms. Shweta
Mohta, Apoorv Kurup, Ms. Nidhi Mittal, Abhimanyu Tewari, P.I. Jose,
Ms. Sneha Kalita, Prashant K. Sharma, Ms. Radhika Gautam, Ashwarya
Sinha, Ms. Priyanka Sinha, Ms. Shubhi Sharma, T. G. Narayanan Nair,
Manu Krishnan, V. Balachandran, Siddharth Naidu for M/s KSN &
Co., Sanjai Kumar Pathak, Arvind Kumar Tripathi, Ms. Shashi Pathak,
Ms. Aruna Mathur, Avneesh Arputham for M/s Arputham Aruna And
Co, Vinay Arora, Naresh K. Sharma, Advs. for the Respondents.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS
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The following Judgment of the Court was delivered
J U D G M E N T
1. The intent of our order today is to activate a dormant provision
of the Constitution of India - 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 has now crossed the
figure of 57 lakh coupled with the consistent ratio of vacancies of almost
40 per cent. Any Constitution has to be dynamic, and thus, even if the
intent behind including the provision (as it appears from the Constituent
Assembly Debates) was slightly different, nothing prevents it from being
utilised to subserve an endeavour to solve an existing problem. For as it
is always said, 'change is the only constant'.
2. India was fortunate to have some of the best minds work on
the framing of our Constitution as members of our Constituent Assembly.
The Indian Constitution is an elaborate one, taking cues from the
experience of various democracies. One of the essential aspects of our
Constitution has been the separation of powers between the Judiciary,
Executive, and Legislature.
3. Chapter V of Part VI of the Constitution of India commencing
from Article 214 upto Article 231 relates to the High Courts in the states.
Article 217 provides for the appointment and conditions of the office of
a Judge of the High Court, wherein the current age of retirement is 62
years. We may say that broadly, it is amongst the youngest ages of
retirement of judges of the apex Court of a state in comparison with
other democracies of the world.
4. Article 224 deals with the appointment of additional and acting
judges. The objective as set out in the Article is 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 has to be for a period not exceeding two
years, or as the President may specify. The ground reality however,
remains that while determining the strength of different High Courts, the
practice that has been adopted is that about 25% of the strength consists
of additional Judges.
5. In the present case, we are concerned with Article 224A which
reads as under:
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"224A. Appointment of retired Judges at sittings of High CourtsNotwithstanding 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."
6. The aforesaid Article begins with a non-obstante clause and
was placed so that a request can be made to 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 the state. The second aspect is that
while sitting and acting, such a judge would be entitled to such allowances
as the President may by order determine and have all the jurisdiction,
powers, and privileges of the High Court judge; but for all other purposes
shall not be deemed to be a High Court judge. The proviso stipulates that
consent has to be obtained from the judge concerned.
7. It is the say of the petitioner before us in this public interest
litigation that a large number of vacancies of High Court judges coupled
with mounting arrears is a scenario which requires urgent attention and
one of the modes to deal with both these aspects is resorting to Article
224A of the Constitution of India.
The Historical Perspective:
8. Article 224A was numbered as Article 200 in the Draft
Constitution and discussed by the Constituent Assembly on 7th June
1949. The debate focused on the purpose and duration of the appointment
of retired High Court judges. Three other specific issues were discussed:
1) whether a retired judge must consent to his appointment;
2) whether a retired judge draws salary after his appointment as
an ad hoc judge;
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS
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3) whether the appointment of ad hoc judges was to be made
with the concurrence of the President.
9. Some part of the debates indicate that the retired judge was to
be invited back only for their expertise and experience to decide cases
that were particularly difficult or important; and that it may not be
advisable to call retired judges and asked them to clear off the arrears
pending before the High Court. On the other hand, Dr. B.R. Ambedkar
had clarified that the intent behind the appointment of ad hoc judges was
as an alternative to the appointment of temporary or additional judges,
which suggestion had not been accepted by the Constituent Assembly.
Thus, ad hoc judges were not intended to be appointed for an indefinite
length of time. In his words :
"It seems to me that if you are not going to have any temporary or
additional judges you must make some kind of provision for the
disposal of certain business, for which it may not be feasible to
appoint a temporary judge in time to discharge the duties of a
High Court Judge with respect to such matters."1
10. The aforesaid provision, it was emphasized by Dr. Ambedkar,
was borrowed (word for word) from Section 8 of the Supreme Court of
Judicature (Consolidation) Act, 1925 in the UK, and similar provisions in
America. It was explained that the proviso was inserted to avoid a situation
where the refusal of a retired judge to accept the invitation could be
treated as remiss of his conduct.
11. Another important aspect as emerges from the debates, was
that it was the view of Dr. Ambedkar himself that the matter of salary
and benefits would be governed by the rules governing pension. Thus,
all benefits would be admissible minus the pension; though the precise
definition of "privileges" of an ad hoc judge was left to the Parliament to
decide. The aspect of concurrence of the President was also debated
and introduced to bring greater transparency in the process.
12. The aforesaid provision for appointment of ad hoc judges was
removed by the Constitution (7th Amendment) Act, 1956. The objective
of that Act clarifies that this was done as the provision for recalling
retired judges for a short period had been found to be neither adequate
nor satisfactory. It was sought to be replaced by the current Article 224,
1 Speech by Dr. B.R. Ambedkar on 7th June 1949, Constituent Assembly Debates, Vol.
VIII, ¶181.
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making provisions for appointment of additional judges to clear off arrears
and for the appointment of acting judges in temporary vacancies.
13. There appears to have been a legislative re-think as the
provision for the appointment of ad hoc judges was reintroduced vide
Article 224A by the Constitution (15th Amendment) Act, 1963. The Lok
Sabha debates did not specifically refer to the philosophy behind the reintroduction, but this can be extrapolated from the purpose behind
introducing ad hoc appointments in the Supreme Court of India. The
debates do reflect the two points of view, i.e., a worry about a possible
"demon of patronage" and on the other hand views being expressed that
it was possibly better to call back a retired judge instead of appointing a
member of the Bar for a few months. The amendments seeking to restrict
the term of ad-hoc judges to three months was however, negated, while
inserting this provision in the Constitution.
Judicial Views :
14. Now we turn to the aspects arising from the aforesaid provision
being debated in certain judicial precedents.
15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.2 - a
Constitution Bench of this Court (five judges) ruled on the issue of whether
a person sitting and acting as a Judge of the High Court under Article
224A of the Constitution has the jurisdiction to try an election petition
under Section 80-A of the Representation of the People Act, 1951. Debate
arose in the context of a judge of the Madhya Pradesh High Court who
was sitting and acting as a judge of that Court under Article 224A of the
Constitution, and his appointment was to last for a period of one year or
till the disposal of elections petitions entrusted to him, whichever was
earlier. In that context it was observed that if a person appointed under
Article 224A of the Constitution was not considered to be a judge of the
High Court for the purpose of jurisdiction, powers and privileges, the
question of appointing such a person would never arise. The provision
could not thus be rendered a dead letter. It was clarified that the effect
of the provision would create a deeming fiction and the Court observed:
"15. (...) The person requested while so sitting and acting shall
have all the jurisdiction, powers and privileges of a judge of the
High Court. Such a person shall not otherwise be deemed to be a
2 (1974) 1 SCC 128.
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judge of that Court. The words "while so sitting, and acting" show
that the person requested not merely has the Jurisdiction, powers
and privileges of a Judge of the, High Court, he also sits and acts
as a Judge of that Court. Question then arises as to what is the
significance of the concluding words "but shall not otherwise be
deemed to be a Judge of that Court". These words, in our opinion,
indicate that in matters not relating to jurisdiction, powers and
privileges the person so requested shall not be deemed to be a
Judge of that Court. The dictionary meaning of the word
"otherwise" is "in other ways", "in other circumstances", "in other
respects". The word "otherwise" would, therefore, point to the
conclusion that for the purpose of jurisdiction, powers and privileges
the person requested shall be a Judge of the concerned High Court
and for purposes other than those of jurisdiction, powers and
privileges, the person requested shall not be deemed to be a Judge
of that Court. It would, for example, be not permissible to transfer
him under Article 222 of the Constitution. The use of the word
"deemed" shows that the person who sits and acts as a Judge of
the High Court under Article 224-A is a Judge of the said High
Court but by a legal fiction he is not to be considered to be a
Judge of the High Court for purposes other than those relating to
jurisdiction, powers and privileges. (...)"
16. On the issue of entitlement of allowances of such an ad hoc
judge, in Justice P Venugopal vs. Union of India and Ors.,3 it was
opined that an ad hoc judge does not become a part of the High Court
and thus there is no question of computing his pension for the period he
is appointed as an ad hoc judge. Thus, the ad hoc judge would not be
entitled to further pensionary benefits after he demits the Constitutional
office that he holds in terms of Article 217.
17. It may also be appropriate to turn to some of the opinions
expressed on the requirement of consent of a retired Judge. In Union of
India vs. Sankalchand Himatlal Sheth,4 it was observed that the
reason for insisting on consent was that a retired Judge cannot be
compelled to work as an ad hoc judge against his consent.