Article 224A of the Constitution
The Supreme Court’s decision to invoke a “dormant provision” in the Constitution to clear the way for 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 up judicial vacancies. The Court has chosen to activate Article 224A of the Constitution, which provides for appointment of ad hoc judges in the High Courts based on their consent.
- The Bench has ruled that the current Memorandum of Procedure be also followed for appointing ad hoc judges, a process initiated by the Chief Justice of a High Court, with a suggested tenure of two to three years. The Court has clarified that this is a “transitory methodology” and does not constrain the regular appointment process.
- As for the judiciary, it should ensure that only retired judges with experience and expertise are offered the temporary positions, and there is no hint of favouritism.
- The numbers both in respect of pendency of cases and vacancies in the High Courts are quite concerning — a backlog of over 57 lakh cases, and a vacancy level of 40%.
- Five High Courts account for 54% of these cases. Interestingly, official data suggest that there need not be a correlation between the number of vacancies and the large backlog.
- The Madras High Court has 5.8 lakh cases against a relatively low level of vacancy at 7%.
- As many as 44% of the posts in the Calcutta High Court are vacant, but the cases in arrears stand at 2.7 lakh.
About Article 224 A
- Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of 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.
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