THE CONTEXT: In January 2025, the Supreme Court permitted High Courts to appoint retired judges on an ad-hoc basis to tackle the backlog of 62 lakh cases, specifically authorizing them to hear criminal appeals within benches led by sitting judges. Justice Rajeev Shakdher and Shadan Farasat discuss the viability and challenges of this measure, including appointment processes, judicial independence, and infrastructure needs.
THE BACKGROUND:
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- Article 224A, Constitution of India: This provision serves as the bedrock, empowering Chief Justices of High Courts to request retired judges to sit and serve as temporary judges. This reflects a constitutional vision recognizing the potential need for supplementary judicial resources.
- Lok Prahari v. Union of India (2021): The Supreme Court’s endorsement of ad-hoc appointments in this case underscored the judiciary’s commitment to leveraging existing constitutional provisions to address the burgeoning problem of pendency. This judgment provided a judicial impetus for the activation of Article 224A.
- Evolution of Interpretation: While Article 224A has been present in the Constitution, its sporadic implementation highlights a historical interpretative hesitancy. Recent judicial pronouncements signal a shift towards a more proactive interpretation, driven by the exigencies of the present situation.
THE PENDENCY CRISIS: A MULTIFACETED CHALLENGE:
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- Magnitude of the Problem: The staggering backlog of over 62 lakh cases in High Courts (as of January 2025) is not merely a statistic but a reflection of a systemic crisis impacting rule of law, access to justice, and economic development.
- Socio-Economic Ramifications: Delays in dispute resolution translate to increased business transaction costs, hindering investment and economic growth. For marginalized communities, judicial delays can perpetuate cycles of disadvantage and deny them timely redressal of grievances, affecting their right to life and personal liberty (Article 21).
- Beyond Numbers: The pendency crisis reflects deeper issues within the judicial system, including:
- Inadequate Judge-to-Population Ratio: India’s judge-to-population ratio remains significantly lower than international standards, placing immense pressure on existing judicial resources.
- Procedural Complexities: Archaic procedures and excessive formalism lead to case disposal delays.
- Infrastructure Deficiencies: Insufficient court infrastructure, including inadequate staffing and technology, exacerbates the problem.
LIMITED IMPLEMENTATION: REASONS FOR HISTORICAL HESITANCY
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- Judicial Reluctance: Some quarters within the judiciary have expressed concerns regarding the quality of justice delivered by ad-hoc appointees, fearing a potential compromise on standards.
- Executive Apathy: The requirement of presidential approval has, in practice, led to delays and bureaucratic hurdles, discouraging High Courts from actively pursuing ad-hoc appointments. This reflects a potential executive-judicial disconnect on the urgency of the matter.
- Lack of a Standardized Framework: The absence of a clear and transparent framework for the appointment, tenure, and responsibilities of ad-hoc judges has created uncertainty and disincentivized their recruitment.
COMPARATIVE PERSPECTIVES:
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- International Practices: Many countries employ similar mechanisms to address judicial backlogs. The United Kingdom uses retired judges as Recorders. Canada appoints pro tempore judges. It can provide valuable insights into best practices and potential pitfalls.
- Lessons Learned: Comparative analysis reveals that the success of ad-hoc appointment schemes hinges on factors such as:
- Robust Selection Criteria: Ensuring appointees possess the requisite expertise, integrity, and commitment to judicial ethics.
- Clear Definition of Roles: Establish clear guidelines regarding the cases that ad-hoc judges can handle and their decision-making authority.
- Adequate Support Systems: Providing ad-hoc judges with the necessary resources, infrastructure, and administrative support.
THE WAY FORWARD:
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- Re-evaluation of Sanctioned Strength: A comprehensive review of the sanctioned strength of judges in all High Courts and subordinate courts, considering factors such as population density, case inflow, and the complexity of litigation. This should be done periodically, perhaps every 5-7 years, by a dedicated National Judicial Commission.
- Specialized Cadres: Creating specialized judicial cadres within the subordinate judiciary to handle specific types of cases (e.g., commercial disputes, environmental cases, cybercrime). This would enhance expertise and efficiency in these areas.
- Virtual Courts and E-Hearings: Expanding the use of virtual courts and e-hearings, particularly for routine matters and witness testimony. This would reduce the need for physical courtrooms and improve access to justice for remote areas.
- Codification of Case Management Rules: Enacting a comprehensive set of case management rules that provide clear guidelines for case scheduling, evidence presentation, and the conduct of proceedings. This would promote consistency and predictability in the judicial process.
- Emphasis on Alternative Dispute Resolution (ADR): Promoting the use of ADR mechanisms such as mediation, arbitration, and conciliation at all stages of litigation. This would reduce the burden on courts and provide parties with faster and more cost-effective means of resolving disputes.
- Mandatory Judicial Impact Assessment: Making it mandatory for all new legislation and policy changes to undergo a judicial impact assessment before enactment. This assessment would evaluate the potential impact on the caseload of courts and identify measures to mitigate any adverse effects.
- Code of Conduct and Ethics: Enforcing a strict code of conduct and ethics for judges, with clear guidelines on conflicts of interest and standards of behavior. The Second Administrative Reforms Commission (ARC) emphasized the importance of judicial accountability for maintaining public trust in the system.
- Prestige and Recognition: Emphasizing the prestige and public service aspect of judicial appointments. Recognizing and rewarding judges who have made significant contributions to the administration of justice through national awards and public commendations.
THE CONCLUSION:
Ad-hoc judge appointments is a welcome step towards easing the backlog, must be coupled with systemic judicial reforms, technological integration, and a culture of proactive policy assessment to ensure a truly efficient, accessible, and equitable justice system for all. This requires a visionary commitment to modernizing the judiciary and empowering it to meet the evolving needs of a 21st-century India.
UPSC PAST YEAR QUESTION:
Q. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. 2017
MAINS PRACTICE QUESTION:
Q. Article 224A of the Constitution provides a mechanism for appointing ad-hoc judges, yet its implementation has been historically sporadic. What are the key impediments to the effective utilization of this provision?
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