"Pendency Has Gone Out Of Control": Supreme Court Says It Will Issue Guidelines For Appointment Of Ad hoc Judges To Reduce Pendency

During the hearing, a Bench led by CJI SA Bobde said that appointment of Additional Judges is "need of the hour" and will be essential to control the "out of hand" pendency at the Court.

The Bench adjourned the matter to 8th April with a direction to all the High Courts to set forth their suggestions in the meanwhile.

The Bench also made it clear that it is not inclined to delay the matter and further adjournments will not be granted.

Courtroom Exchange

Recognising the importance of the issue raised in the petition, the CJI said,

"The pendency has gone out of control. There are Civil Applications pending in North India up to 30 years. There are all kinds of problems High Courts are facing."

CJI Bobde said that such Additional Judges can sit on these rosters and pendency can end. However, he clarified that this will not affect the regular appointments of Judges and nobody should be threatened by invocation of this provision.

"What we have in mind isn't that system of appointment of regular judges should be stalled or stopped by adhoc…It has nothing to do with regular Appointments. But they will be considered junior most. Its not a threat to anybody in functioning of the Court… The idea isn't of the Bench or the Petitioner. It is a constitutional provision (Article 128). The only thing is that it has not been implemented," the CJI explained.

The order was passed the order after hearing views of various counsels appearing for the High Courts of Allahabad, Madhya Pradesh, Uttarakhand, etc.

As all the counsels endorsed the idea.

He added, "After the Supreme Court Collegium approves the proposed name(s), they can sit and their tenure can be extended. Other factors like accommodation will have be looked into it."

President's consent for Advocate hoc appointments

During the hearing, the Court's attention was drawn towards Article 224A of the Constitution which contemplates "Appointment of retired Judges at sittings of High Courts".

The Bench noted that the Article refers it to the President of India (for his consent). It remarked, "The President cannot act without the Collegium."

Justice Kaul added, "Consent of the President is required. That means, consent of the Cabinet and consent of the Collegium also."

At this juncture, Senior Advocate Basant submitted that the Article says "previous consent to resort to the article is required".

He argued that the words "previous consent" in the Article mean consent to resort to the Article, not the individuals concerned (who are proposed to be appointed). "Otherwise, the purpose would be hopelessly defeated. If you think power goes to the Collegium then alright but I don't think so. I think it is only the Chief Justice," he added.

Unconvinced, the Bench said,

"if the word "consent" under the Article means consent of the President for High Court to resort to the Article, and the President denies his assent, the Article will be rendered completely unworkable."

It added that it will take a decision in the matter after seeking suggestions of the High Courts. Accordingly, a direction was passed to the Registrar Generals of all the High Courts to file their affidavits.

Senior Advocate Nadkarni submitted that the Registrar General of the Supreme Court has already filed an affidavit in the matter.

Mr SN Shukla, Secretary of Lok Prahari organization appeared for the Petitioner.