Thursday, February 2, 2023
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SC cracks whip on HC judges appointments, sets deadline for Centre to notify collegium

Bench led by CJI Bobde also paved the way for appointment of retired judges as ad-hoc judges to meet the vacancy crisis in high courts.

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New Delhi: The Supreme Court Tuesday set a deadline for the Centre to complete all the formalities related to the names recommended for appointment as high court judges, before forwarding them to the top court collegium.

According to the Memorandum of Procedure — a set of guidelines for appointment of judges in higher judiciary — an HC collegium sends its recommendation to the central government and the SC collegium. The latter, however, can clear the names only after it receives proposals from the government, following background checks of the candidates by Intelligence Bureau (IB). The collegium then clears the names and the law ministry notifies the appointments.

However, the process has been significantly delayed in the past few years, which has led to a large number of vacancies in high courts across India. The top court had taken suo motu cognisance of the matter in 2019.

To tackle this delay, a three-judge bench led by Chief Justice S.A. Bobde ruled that the Intelligence Bureau (IB) should submit its report on the recommendations made by the collegium within four to six weeks of receiving the files.

It added that it is desirable for the central government to forward the recommendations to the SC collegium within eight to 12 weeks of receiving the names from the high court and IB.

“The High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength,” the bench observed in its order.

In a separate but related case, the same bench also paved the way for appointing retired high court judges as ad-hoc judges under Article 224A of the Constitution.

The bench enumerated certain provisions where the ad-hoc appointments could be made: where vacancies are more than 20 per cent of the sanctioned strength, cases in a particular category are pending for over five years, more than 10 per cent of the backlog of pending cases are over five years old and the percentage of the rate of disposal is lower than the filing of cases either in a particular subject matter or generally in the court.

The SC bench further clarified that such ad-hoc appointments to HCs cannot be made based on a single provision in its order on a PIL filed by Lucknow-based non-profit organisation Lok Prahari.

It also noted that ad-hoc judges can be appointed if in a particular jurisdiction, criminal or civil, the rate of disposal is consistently lower than the rate of filing over a period of a year or more and a situation of mounting arrears is likely to arise.

Also read: Modi govt took nearly a year to clear 24 names for HC judge appointments in 4 states

‘MoP not law, can be varied’

In the suo motu cognisance matter, the bench also referred to the timeline entailed in the Memorandum of Procedure (MoP).

The MoP notes that an HC Chief Justices should forward proposals for appointment six months before the vacancy arises. However, no timeline is prescribed for the Centre to send names to the SC collegium after all the formalities.

Meanwhile, the memorandum fixes a four-week deadline for the CJI to put forth the collegium’s suggestions before the law ministry, which in turn has to put the proposal before the President within three weeks.

In the Lok Prahari judgment, the SC said that while the top court’s judicial pronouncements are law, the MoP, framed under an administrative discussion, “cannot be said to be law and can always be varied”.

Filling the gaps in the MoP, the court went on to prescribe the timeline for the IB and Centre. It further added that the government should make the appointment immediately once it receives the names from the top court collegium.

In case of any reservations, the Center must send the file back within a reasonable period with specific reasons, the bench said.

However, if the SC collegium reiterates the recommendation unanimously, then the appointment should be done within three to four weeks.

During earlier hearings, the Centre had blamed the high courts for not forwarding the recommendations on time.

On this issue, the bench expressed concern and implored high court chief justices to follow the MoP timeline.

“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,” noted the bench, acknowledging the crisis at its end.

It said nothing prohibits the HC chief justices to make periodical recommendations, without “unnecessarily waiting for the outcome of the first set of recommendations”.

The judges, however, also emphasised that the delayed response by the government has discouraged “suitable candidates” from accepting the proposal to get elevated as judges.

Also read: SC collegium clears 13 names as judges for Bombay HC despite red flags by two senior judges

‘Ad-hoc judges only transitory till appointments are in place’

Meanwhile, the bench noted that the hiring of ad-hoc judges will not constrain or limit the regular appointment process, adding it is a “transitory methodology till all the appointments are in place”.

“We may, however, hasten to add that the objective is not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court,” the SC bench added.

“The primary objective being to deal with long pending arrears, the said objective will be subserved by assigning more than five-year-old cases to the ad hoc Judges so appointed,” it further noted.

The authority vested under Article 224A would require the Chief Justice of a HC to seek prior consent from the judge concerned and the recommendation would be routed through the SC collegium, the court said, laying down guidelines for such appointments.

Also, the previous consent of the President of India is necessary, the court added.

The process must be completed within three months. With regard to monetary benefits and privileges, the court said, it would be as equivalent to that of a sitting judge.

However, the ad-hoc judge would not be entitled to pension till he holds the post, which the bench said, should be preferably between two to three years.

Depending upon the strength of the HC and the problem faced by the court, the number of ad-hoc judges should be in the range of two to five in a HC, SC added.

The top court also decided to keep the matter related to ad-hoc judges pending, given that situations may arise to modify the guidelines in future.

(Edited by Rachel John)

Also read: Testing, vaccinations, oxygen — 10 HCs have issued directions to states on Covid issues


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