NEW DELHI: To reduce pendency of 62 lakh cases and counting in high courts, Supreme Court on Thursday, with the Centre’s agreement, ordered that a maximum of five retired HC judges could be reappointed to each HC to hear criminal cases, reports Dhananjay Mahapatra. It added that their number should not exceed 10% of the HC’s sanctioned strength.
With attorney general R Venkataramani recording no objection from the Union govt, a CJI-headed bench set in motion the reappointment process under the dormant Article 224A of the Constitution, used only thrice in last 75 years.
Retired judges to be part of benches led by sitting judges
The move will enable HC collegiums to recommend names of retired judges, with proven record of efficient disposal of cases, to the Supreme Court collegium, which will then select suitable persons and recommend their names for appointment as ad hoc judges of HCs for a fixed tenure or for specific purpose.
A bench of the top three SC judges, CJI Sanjiv Khanna and Justices B R Gavai and Surya Kant, clarified that the retired judges, after being appointed as ad hoc judges, would be part of a bench headed by a sitting judge of the HC, who may be junior to the ad hoc judge, and decide pending cases. This means, no fresh cases would be listed before a bench which has an ad hoc judge.
Till 1970, some retired SC judges were reappointed to the top court. But the practice was rare in HCs. Instances of reappointment of retired HC judges were for specific purposes – Justice Suraj Bhan to Madhya Pradesh HC in Nov 1972, nearly nine months after his retirement, for disposal of election petitions; Justice P Venugopal for two years in Madras HC in Aug 1983; and Justice O P Srivastava as ad hoc judge of Allahabad HC in 2007 as he was part of the special bench hearing the Ayodhya suits.
The Allahabad high court, with a sanctioned strength of 160 judges but functioning at 50% strength, has the highest pendency of more than 11.5 lakh cases – 6 lakh civil cases and 5.5 lakh criminal cases.
Of the total pendency of over 62 lakh cases in HCs, 18.2 lakh are criminal cases and 44 lakh civil. Total pendency in Bombay HC is 6.5 lakh, Calcutta HC 2 lakh, Madras HC 5.2 lakh, Delhi HC 1.3 lakh, Punjab and Haryana HC 4.3 lakh and Karnataka HC 3 lakh.
To facilitate early reappointment of retired HC judges under Article 224A, the bench kept in abeyance certain impractical conditions a three-judge bench of the SC had imposed in its April 20, 2021, judgment. These include the rider that ad hoc judges can be appointed only when there is less than 20% vacancy in a HC; and if 10% of pending cases are more than five years old.
Supreme Court had reasoned that if retired judges were allowed to be appointed without any caveat, then HC collegiums would be lax in recommending names for filling the vacancies with regular appointments.
Article 224 provides that though such retired judges on being appointed as ad hoc judges would draw a salary and enjoy powers and privileges of an HC judge, they would not be deemed to be a judge of the HC. This means, they will not have any say in the administrative affairs of the high court, nor will they head a division bench.