Article 224A is not an alternative to regular appointment of judges: SC

The recourse to Article 224A is not an alternative to regular appointments. In order to emphasize this aspect, we clarify that if recommendations have not been made for more than 20% of regular vacancies, then the trigger for recourse to Article 224A would not arise”.(Para 55)

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

WRIT PETITION (C) NO. 1236 OF 2019

20 April 2021

The Hon’ble Supreme Court consisting of Chief Justice of India S.A.Bobde, Justice Sanjay Kishan Kaul, and Justice Surya Kant held in this case that, the 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. A detailed note has been made after hearing the arguments of both parties.

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 because 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. In the present case, we are concerned with Article 224A which states the appointment of retired Judges at sittings of High Courts. 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 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. 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 that requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India.

Looking upon the historical perspective of this article, Article 224A was numbered 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 he was appointed an ad hoc judge; 3) whether the appointment of ad hoc judges was to be made with the concurrence of the President. 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 ask them to clear off the arrears pending before the High Court. The aforesaid provision, which 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 remission of his conduct.

Viewing as per judicial views, the court noted that in the case-law of Krishan Gopal vs. Shri Prakash Chandra & Ors. - 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. It was clarified that the effect of the provision would create a deeming fiction and the Court observed:

“ 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 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.” (Para 15)

The court made a lot references of to other case laws as well, but one of the most important references made by the court was that in the last 58 years, only three retired judges have been appointed as ad hoc judges to HCs for one year each — Justice Suraj Bhan to Madhya Pradesh HC in 1972, Justice P Venugopal to Madras HC in 1982, and Justice O P Srivastava to Allahabad HC in 2007 for the Ayodhya case.

The court stated that “The trigger point for activating Article 224A by an HC chief justice could be many — (a) if vacancies are more than 20% of the sanctioned strength, (b) cases in a particular category are pending for over five years, (c) more than

10% of the backlog of pending cases are over five years old, (d) the percentage of rate of disposal is lower than the institution of cases either in a particular subject matter or generally in the court, and, (e) 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)

After hearing the arguments of both parties, the court held that "The recourse to Article 224A is not an alternative to regular appointments. In order to emphasize this aspect, we clarify that if recommendations have not been made for more than 20% of regular vacancies, then the trigger for recourse to Article 224A would not arise”.(Para 55)

Regarding the 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). The court held regarding the above that, “We have already noticed that para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution. We have also noticed that it is not law laid down in this behalf under Article 33 141 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. We may, however, notice that 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 45 and 56)

Conclusion the court held that;

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would 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, we will endeavour to iron them out. We must set aside apprehensions, if any, to chart this course and we are confident that there will be a way forward. In view of the requirements of a continuous mandamus to see how a beginning has been made, list after four months calling upon the Ministry of Justice to file a report in respect of the progress made”. (Para 65 and 66)

In order to understand the proper procedure mentioned by the Supreme Court, refer to the guidelines mentioned by the court in its guidelines.

View/Download Judgment - LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) V/S UNION OF INDIA & ORS.

Aaron Varughese