The writ of mandamus was filed in case of Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others to activate Article 224A of Constitution of India for the appointment of ad hoc judges to deal with unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40%
Chapter V of Part VI of COI commencing from Article 214 upto Article 231 relates to the High Courts in the states. Article 217 provides for appointment & conditions of office of a Judge of the High Court, wherein the current age of retirement is 62 years, it is amongst youngest ages of retirement of judges of apex Court of a state in comparison with other democracies of the world.
Article 224 deals with appointment of additional & acting judges. Objective as set out in the Article is to take care of any temporary increase in business of the High Court, appointment is for maximum of 2 years or as president specifies.
Present system of appointments as envisaged by Constitution & as elucidated in Collegium system makes it clear that first step is a recommendation from that High Court by a collegium of 3 senior most judges presided over by Chief Justice of the High Court.
Now the issue arise in the matter are how to make this process more efficacious, what can be done to support quicker adjudicatory process. Also the purpose of utilisation of article 224 a of c o i to appoint ad hoc judge is in context of large number of existing vacancies.
Discretion of the Chief Justice of the High Court under Article 224A is not constrained but as stated, some general guidelines are required to be laid so that power conferred under the said provision is exercised in a transparent manner.
The Chief Justice of India SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant observed that the recourse to Article 224A is not an alternative to regular appointments. There will be a pre recommendation process. Earlier that was required to recommend before 6months to chief justice to complete the process of appointment U/S 217 or 224 of COI. Now 3 months prior recommendation is sufficient. There should be 2 to 5 judges in high Court and the tenure should be 2 to 3 years.