The Judicial system of our country is plagued with insurmountable pendency in the subordinate judiciary with more than 3.5 crore cases pending. The High Courts are also clogged with more than 5 lac cases pending in the various High Courts. The number of vacancies in the High Courts is stupendous and there is lack of Will of the Government and the Collegium to appoint new judges to the various High Courts. Out of sanctioned strength of 1080 judges, the working strength of judges in the High Courts is only 661 with whooping vacancies of 419 as on 01-03-2021.

The Supreme Court on March 25 expressed concern over the mounting pendency in the High Courts and decided in principle for engaging retired high court judges to tackle the huge pendency in the various High Courts. The Apex Court also expressed dismay as to why the Central Government was sitting over 45 names recommended for appointment as HC judges at the crucial time when vacancies in the High Courts are pegged at 40% of the sanctioned strength.

The Apex Court felt duty-bound to suggest to experiment a novel way to recall retired High Court judges as mandated under Article 224A of the Constitution and has sought suggestions from all High Courts so that standard operating procedures (SOPs) to recall retired HC judges be finalized. The seriousness of the Apex court can be gauged by the fact that it has directed the High Courts to respond before April 8, so that final directions be issued in this regard.

It would be trite to reproduce Article 224A of our Constitution which reads as under:
"Appointment of retired Judges at sittings of High Courts" 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."

It is relevant that the reappointment/ extension of tenure of Administrative Officers in the Government is a common factor. Before 1975, there was a practice of reappointment of Supreme Court Judges under Article 128 of the Constitution. However, this precedent has not been resorted to in current times.

It would be relevant to reproduce Article 128 of the Constitution of India which reads as under:
"128. Attendance of retired Judges at sittings of the Supreme Court Notwithstanding anything in this chapter, the Chief Justice of India may at any time, with the previous consent of the president, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, 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 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 Court unless he consents so to do."

The Apex Court observed that since the retired judges would be given a specific tenure only to adjudicate the old pending cases and also as they would be considered the junior-most in the hierarchy of the High Court, it would not cause any discontent amongst the serving judges.

The Court expressed concern that cases are pending in the High Courts for almost 2 decades and justice is being delayed. The Court clarified that ad-hoc appointment of retired judges is not a substitute or alternative to regular appointments to the High Court but an emergency measure to unclog the High Courts & as soon as the pendency is over their tenure of such judges would automatically come to an end.

It is indeed a welcome step in dispensation of justice as the retired Judges are not only experienced but most suitable for adjudication of old pending cases. It is pertinent that High Court Judges retire at the age of 62 and due to medical advancements; a person is physically & mentally agile & fit till 70 years or even more. But the million dollar question is what would be the incentive for the retired judges to seek reappointment? It is common knowledge that the retired judges draw a handsome pension.

They are also permitted to practice in the other High Courts & the Supreme Court. There is also a practice of the retired judges being appointed as Arbitrators by the Courts on payment of Honorarium/Remuneration. Moreover, the retired judges would be placed lowest in the hierarchy of Judges. This would be insulting & offensive to the senior retired judges to be placed below their juniors.

This could prove to be a temporary or interim measure to unclog the High Courts. The solution to the problem of mounting pendency lies only & only by filling up of vacancies by the Government, which is in the domain of the Collegium & the Government. As an interim measure and in the wider interest of the suffering litigants and to grant early justice, this measure is unreservedly welcome.

It is imperative that the Government should treat appointment of Judges as urgent and clear all pending names at the earliest as there is no dearth of talent, intellect, sincerity & integrity in our country and selection of 400+ incumbents should not pose a problem if there is Will & Determination of the Government. It is also high-time to resort to Article 128 of the Constitution for ad-hoc reappointment of retired judges of the Supreme Court so as to expedite the final disposal of pending matters in the Apex Court also.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]