CJI S.A. Bobde's Legacy: Two Orders That Could Reduce Pendency in HCs

By fixing timelines for each stage in the process of appointing HC judges, and by activating a dormant provision of the Constitution (Article 224A), the SC has sought to fix responsibility for undue delays on the respective stakeholders. 

New Delhi: The outgoing Chief Justice of India, S.A. Bobde, who is retiring on April 23, delivered two orders on Tuesday, as part of the bench presided by him, which can help to reduce pendency of cases in the high courts.

The Supreme Court, ever since the pronouncement of judgment in the National Judicial Appointments Commission (NJAC) case in 2015, striking down the NJAC Act and reviving the collegium system of appointing judges, had been avoiding taking judicial note of the Centre’s delay in revising the Memorandum of Procedure (MoP) for appointing high court and Supreme Court judges. Instead, it had always treated it as an administrative matter to be dealt between the CJI, as the head of the Supreme Court collegium and the Centre. Successive chief justices of India from CJI T.S. Thakur to CJI Ranjan Gogoi discouraged litigants who sought judicial remedy to the stalemate over the MoP.

On Tuesday, however, a three-judge bench of CJI Bobde and Justices Sanjay Kishan Kaul and Surya Kant dealt with the matter judicially, and issued binding directions to streamline the appointment of high court judges, within specified timelines. “We are both pained and in disagreement with the stand sought to be taken (by the Attorney General of India) as it does not appreciate the endeavour in the present proceedings which is limited in its very character,” the bench noted in one of the previous hearings in the case. The AGI had pleaded with the bench that the matter should not be examined on the judicial side, as it is an administrative matter between the executive and the judiciary.

On April 15 (the last hearing of the case), the AGI stated that the Centre will decide regarding 10 names sent to it in letters dated July 25, 2019, October 17, 2019 and August 18, 2020, which are pending for more than six months, within a period of three months.

On Tuesday, the bench issued the following directions: first, the Intelligence Bureau (IB) should submit its report/inputs within four to six weeks from the date of recommendation of the high court collegium, to the Centre.

Secondly, the bench held it to be “desirable” that the Centre forward the files/recommendations to the Supreme Court within eight to 12 weeks from the date of receipt of views from the state government and the report/input from the IB.

As per Tuesday’s order, it would then be for the government to then make the appointment immediately on the aforesaid consideration and undoubtedly if the government has any reservations on suitability or in public interest, within the same period of time, it may be sent back to the Supreme Court collegium with the specific reasons for reservation recorded. Earlier, no time limit was prescribed in the MoP for action by the prime minister and the president.

Also read: Centre’s Failure to Clear Saurabh Kirpal as HC Judge is an Act of Unlawful Discrimination

If the Supreme Court collegium, after consideration of these inputs, still reiterates the recommendation(s) unanimously, such appointment should be processed and the appointment should be made within three to four weeks.

“We are conscious that the aforesaid exercise is collaborative in nature and we would expect promptness in this process to facilitate the larger cause of dispensation of timely justice. With the above directions, we close this proceeding,” the bench concluded.

Unrelated case

The case, M/s PLR Projects Pvt Ltd. v Mahanadi Coalfields Ltd & Others, was a transfer petition (civil) of 2019, and had no direct nexus with the appointment of high court judges. In 2019, both in the Orissa high court and in all districts, the working of courts had been paralysed by the strike of advocates. The strike was over a decision of   the collegium clearing the names of some candidates and not clearing the names of other candidates. In this case, the petitioner sought the Supreme Court’s intervention to facilitate hearing of his case before the high court, and provision of security in view of the ongoing strike. The strike was eventually withdrawn, and the petitioner’s prayer was granted, after the Supreme Court disapproved of the strike and sought appropriate action against the advocates responsible for abstention of work.

During the hearing of the case, however, the bench was told that there were number of vacancies in the high court, and as a result of the workload, there was resentment among the advocates on their matters not being taken up.  The demand for creation of a bench of the high court in the western and southern part of Orissa on account of large distance to travel to the high court was also mentioned. The bench expressed its concern that 40% of the high court’s sanctioned strength was vacant. The bench reminded the stakeholders that convention requires that recommendations to fill vacancies are sent six months in advance of the vacancies occurring.

Taking note of the vacancies at the all-India level, the bench noted that while the sanctioned strength is 1,079 high court judges, there are 410 vacancies. As many as 213 recommendations are stated to be in process with the government/Supreme Court collegium, while recommendations have yet to be received from the high court collegium for 197 vacancies.

In 2019, only 65 judges to the high courts were appointed as on December 2, 2019 as against 115 in 2017 and 108 in 2018. The Supreme Court made it clear that the collegium of the high court are vested with the responsibility to make recommendations six months in advance and it should be fulfilled qua the pending 197 recommendations to be made.  Although the AGI, K.K. Venugopal, emphasised that the solutions have to be found in respect of the “larger canvas”, the bench found it appropriate to begin with a “micro level analysis” to have an ultimate “macro level solution”. “We are, thus, confining ourselves at present to the aspect of 213 names pending with the Government/Supreme Court collegium,” the bench suggested while explaining why it did not intend to open the Pandora’s box on reforming the MoP, as directed by the  Supreme Court in 2015 in the NJAC case.

A man walks inside the premises of the Supreme Court of India. Photo: Reuters/Adnan Abidi

The bench made it clear that in cases where the recommendations of the high court collegium meet with the approval of the Supreme Court collegium and the government, their appointment must take place within six months. “This is not to say that in other cases the process should not be completed within six months,” the bench held.

The bench found it necessary to deal with the appointments issue in this case because in Orissa, with the expeditious filling up of the vacancies in the subordinate judiciary, it was expected that there would be greater flow of cases before the high court (through appeals from lower courts), and the high court would find it highly inadequate working with around 50 per cent of the strength to deal with this additional flow. Imagining the situation to be the same in other high courts, the Supreme Court bench cautioned that it would create a judicial jam at the level of the high courts.

“The consequent inability to deal with the cases promptly also generates the dissatisfaction among the litigants and the lawyers,” the bench noted.  “Stop looking at shadows, the process is collaborative and the endeavour should be to improve the situation by reducing the time periods,” the bench told all the stakeholders.

Tuesday’s order

“The high courts are in a crisis situation.  There are almost 40 per cent vacancies in the high courts, with many of the larger high courts working under 50 per cent of their sanctioned strength, ” Tuesday’s order stated at the outset. The bench noted that as on date, the recommendations received and under process with the government are 196, leaving 220 recommendations to be received. Reminding of the importance of the chief justices of the high courts making recommendations in time, the bench lamented: “However, even recommendations for 220 existing vacancies appear not to have been made much less for vacancies, which are going to arise in the next six months.”

The bench observed that there is no impediment to initiate a new process of recommending names without waiting for the result of the earlier recommendations. The bench took note of the hesitation of some high court chief justices to recommend names when the earlier list(s) is in the pipeline. At one stage, about 45 names recommended by the high courts were pending with the Centre for more than six months. The bench confirmed on Tuesday that these names have reached the Supreme Court collegium. The bench reminded the Centre that six names reiterated by the Supreme Court collegium a second time are also awaiting appointment.

Also read: COVID-19 Increased Pendency of Cases at All Levels of Judiciary

The bench made it clear that the observations of the Supreme Court in the Third Judges case barring judicial review on grounds other than want of consultation with the named constitutional functionaries or lack of any condition of eligibility are not applicable in this case. “It is not possible to accept this contention since the above observations of the court deal with the judicial review of particular appointment and not such aspects of the appointment process like delay,” the bench noted.

In a related case (discussed below), the same bench opined that total time period before names are forwarded to the Supreme Court collegium should not exceed four months after the recommendations are made by the collegium of the high court. The bench admitted that it is a challenge to persuade competent and senior lawyers “who may have large practices” to accept the position of the judge, and the pendency of their names for a long period of time does little to encourage them.

Activating  a dormant provision

The hearing of the PIL, Lok Prahari Through Its General Secretary S.N.Shukla IAS (Retd.) v Union of India, saw the bench activate a dormant provision of the Constitution – Article 224A – for the appointment of ad hoc judges to deal with the unprecedented situation arising from the backlog of cases pending the in the high courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.  There are only three instances of use of this provision since the constitution came into force.

Under Article 224, 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. While determining the strength of different high courts, the practice that has been adopted is that about 25 per cent of the strength consists of additional judges.

Article 224A enables appointment of retired judges at sittings of high courts, on the request of the chief justice of a high court and with the previous consent of the president, although they are not deemed to be Judges of that high court.  The provision can be used only if the retired judge, to be so appointed, consents to it. While sitting and acting as a judge, the reappointed retired judges 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.

The bench took note of the data from the National Judicial Data Grid that five high courts alone are responsible for 54% of the pendency of over 57,51,312 cases. They are high courts of Allahabad, Punjab and Haryana, Madras, Bombay and Rajasthan. The Madras high court has among the highest arrears in the country of 5.8 lakh cases despite having fewer vacancies than most other high courts (i.e. 7%). This, according to the bench, supports the view that even if the existing vacancies are few, a situation may arise requiring the expertise of experienced judges to be appointed as ad hoc judges. On the other hand, Calcutta high court has one of the highest vacancies of regular appointments (44%) but less than half the arrears as compared to Madras (2.7 lakh cases).  In such a scenario, it is apparently the absence of strength of the judges which may be responsible for creating the arrears and, thus, giving rise to another scenario for appointment of ad hoc judges.

In the Punjab and Haryana high court, which has a vacancy problem, the arrears have more than doubled over the last six years. The NJDG data shows that 56.4% pending cases were filed within the past five years whereas 40 per cent of the pending cases were filed between five to 20 years ago. “The primary purpose of appointing ad hoc judges is to deal with the latter group of cases that have been pending for over five years,” the bench said.

The 124th Report of the Law Commission recognised that retired judges have several decades of adjudicatory experience, and their talents could be utilised to dispose of mounting arrears. Both the 79th Report (1979) and 188th Report (2003)of the Law Commission  had suggested recourse to Article 224A to achieve this purpose. The 245th Report of Commission in 2014, however, expressed some concerns on account of the appointment being for a short period and the accountability in the functioning and performance of ad-hoc judges.

Also read: CJI Bobde’s Trip to Kanha: Is State Govt Hospitality Compatible With Judge’s Code of Conduct?

The bench, while favouring use of Article 224A, however, has subjected it to some checks and balances. First, there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to. It may be difficult to find the requisite talent at a particular stage which may have to await some time period, as the bench put it. However, certainly, it cannot be countenanced that no or very few recommendations are made for a large number of vacancies by resorting to Article 224A, the bench held.

The bench made it clear that appointments under Article 224A have to be routed through the collegium of the Supreme Court, and that maximum period of three months is sufficient to carry the process through all stages.  The chief justice of the high court should take the initial steps at least three months in advance so that there is no unnecessary delay in this regard, the bench held.

Among the guidelines for trigger points for activating the provision, the bench laid down the following:

  1. If the vacancies are more than 20% of the sanctioned strength;
  2. The cases in a particular category are pending for over five years;
  3. More than 10% of the backlog of pending cases are over five years old;
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the court;
  5. If the rate of disposal is consistently lower than the rate of filing of petitions over a period of a year or more.

The bench has directed the chief justices of high courts to prepare a panel of judges on the anvil of retirement, and former judges, after a personal interaction with them. The bench has proposed that the tenure of the ad hoc judges may vary from two to three years. Their number should be in the range of two to five in a high court, depending on the strength of the high court and the problem faced by it, the bench has held. The ad hoc judges should be assigned more than five-year-old cases, the bench has held, keeping the primary objective in mind. The bench has barred the ad hoc judges from performing any other legal work, whether it be advisory, of arbitration or appearance.  The emoluments and allowances of an ad hoc judge should be at par with a permanent judge of that court at the relevant stage of time minus the pension, the bench has held. The bench has directed the union ministry of justice to file a report in respect of the progress made at the next hearing of the case after four months.

Hopefully, these twin orders – which can well be described as CJI Bobde’s legacy – can make a difference to the pendency of cases in the high courts.