Transformative Constitutionalism, Substantial versus Formal Equality and the Reservation Debate: Reflections in B.K. Pavitra v. Union of India (II)
June 25, 2020
June 25, 2020

Appointment of Ad-hoc judges to deal with aftermath of COVID-19

Due to the spread of COVID-19, the courts across the country have been functioning limitedly. In courts, only a few benches have been sitting for two-three hours, which take up a fraction of cases that are considered to be extremely urgent. While imposing the lockdown in the whole of India was a necessary step to prevent the outbreak of the pandemic, now is the time to take measures to bring the whole country back on track. Currently, a total of 3,23,08,575 cases are still pending adjudication across various courts in the country. This number is 48,16,341 for various High Courts in India. Due to the reduced working hours during the lockdown, the pendency has increased and thealready grim situation has worsened.  In 2018, a total of 33,77,467 cases were instituted but only 31,96,758 cases were disposed of. Thus it can be seen that the gap between freshly instituted and disposed of cases is widening. With the courts not functioning due to the outbreak of COVID-19, the situation has only gotten worse.  The courts have not been functional since 16 March. Before that, the courts across the country were shut on account of Holi vacations. During this time not only cases could have been disposed of, but fresh matters would have received a first hearing and other cases would have proceeded further.
The courts would not resume working normally till July. As soon as courts open again, there would be an avalanche of litigation and the courts would immediately need more judges to handle the workload.
As of 01.05.2020, out of 25 High Courts across the territory of India, only 4 High Courts have a full strength of judges. According to the Department of Justice, out of the 1079 posts sanctioned for judges across various High Courts only 694 posts are filled and 385 posts are lying vacant. One-third of the sanctioned strength of judges are not even appointed, thus directly impacting the efficiency and disposal of cases in these courts.  For some courts the situation is worse as only half the sanctioned strength of judges is appointed. For example, the Rajasthan High Court is functioning with only 25 judges even though the sanctioned strength is 50. Similarly, the High Court of Andhra Pradesh has a sanctioned strength of 37 judges out of which only 18 judges are appointed and 19 posts are lying vacant.  The High Courts of Patna, Delhi, Orissa, Telangana and Calcutta, are all functioning with approximately only half of its sanctioned strength of judges. The High Court of Chhattisgarh, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Gujarat, Madras and Punjab & Haryana are all working with almost only two-third of its sanctioned strength of judges. Till the time existing vacancies are filled, new vacancies would arise. It is time to break the vicious cycle. 
The lack of manpower impacts all the stakeholders. Litigants who approach the courts in an urgent situation that requires immediate action may have to wait for months even for their cases to be taken up for fresh admission. Many cases, that involve a question of life and death also take months before they get a single hearing. Furthermore, cases that are once stayed are not listed for years. The justice delivery system loses its purpose when litigants have to desperately wait for their turns; for a chance to be heard. If Courts fail to provide quick and cheap justice to the common man, then the society may resort to taking justice in his own hand.
Advocates are also equally affected by the shortage of judges. The biggest struggle for lawyers is not to win a case but to get it listed. In a lot of these cases, time is of the essence and the case becomes infructuous even before getting a single opportunity of hearing before the court. Due to the pendency of cases, a case might get listed after weeks of filing and even when it is listed, there is no guarantee that it would be taken up by the bench. Due to a lengthy causelist, the adjudicating officer fails to exhaust the  causelist and even fresh admission cases that are not-reached are thereafter listed after four weeks, with no guarantee that they would be taken up even then. This cycle continues for months before the case is finally taken up, thus increasing the frustration amongst lawyers, who are constantly under pressure from their clients.
Similarly, judges are equally affected by the vacancies. With only half the sanctioned strength of judges appointed but increasing litigation, the workload on judges has also increased manifold. This has an impact on the quality of judgments, leads to frustration amongst judges and the heavy workload also affects their health.
Appointment of ad hoc judges under Article 224A
The Constitutional makers had foreseen such a situation, wherein there could be a sharp rise in the business of Courts.  To deal with this contingency, a provision for appointment of retired judges as ad hoc judges was added to the Constitution. Article 224A lays down provisions for the appointment of ad hoc judges to the High Court. The Chief Justice of the High Court has the power to make recommendations which are further approved by a three-member Supreme Court collegium. Before clearing a candidate, the collegium seeks the views of other Supreme Court judges who have earlier served in the high court where the appointment is to be made. Thereafter, the recommendations have to get the seal of the President before. Initially, the appointment should be for one year, but the same could be extended by further periods of one year each, up to a total of three years.
This is not a novel step. The provision has been invoked in the past and retired judges have been appointed on ad hoc basis to join the bench. However, in the past two decades, the practice has not been followed and retired judges have not been re-appointed as High Court Judges.Time and again, the Law Commission has recommended that the provision enshrined under Article 224A of the Constitution should be given teeth to, in order to deal with the glaring pendency of cases.In Ajit D. Padival vs Union Of India (UOI) And Ors. on 29 March, 1988, it was observed that speedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 of the Constitution of India and the same is violated by a delay caused in disposing of the matters which are pending before courts. Earlier, the vacancies of judges were filled in very expeditiously but the situation today is depressingly different. The convention must be respected in the altered circumstances, or otherwise it would render Article 224A nugatory.
Appointing retired judges as ad hoc judges have its own set of advantages. Firstly, judges are at the peak of their intellect at the time of retirement. Secondly, retired judges are at an advantage as they are familiar with the working of the court vis-à-vis an additional judge, who may be newly appointed. An ad hoc judge can step in his old roles and would have a faster rate of disposal of cases, thus directly impacting the pendency of cases. Thirdly, appointing more judges would divide the advocates and litigants into different courtrooms and help is reducing crowding. In the times of COVID-19 when people are advised to maintain social distancing advocates and litigants would not cluster in a few courtrooms since more benches would be functional at the same time. To deal with the increasing business retired judges of the High Court can be appointed as ad hoc judges for a period of 3 months to increase manpower and ensure that the loss of time can be covered.
The government in the past had taken a policy decision to not appoint additional judges under Article 224A till existing vacancies are fulfilled. Such a policy decision has resulted in making the provision for appointment of ad hoc nugatory as observed in various law commission reports and judgments passed by courts. To say the least, the government is over-optimistic if they think that the existing vacancies can be filled without appointing ad hoc judges. Such a policy decision is clearly against the spirit of the Constitution and defeats the provision of Article 224A, which the constitution-makers would have not intended.
Therefore keeping in mind the loss of time caused due to COVID-19 and the glaring pendency of cases, it is the need of the hour to appoint ad hoc judges. Farsightedness and prompt action are required to deal with the backlog caused due to the lockdown.



Harshita Thakral is a Practicing Advocate at Rajasthan High Court, Jaipur





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