In a country which has one of the least judges-to-people ratio, around 15.5 judges for every 10 lakh people in 2013, the present stalemate between the government and the Supreme Court over NJAC only makes matters worse as there has not been any appointment of any judges to the High Courts or Supreme Court, with the collegium system being suspended indefinitely. There is an alarming level of backlog and arrear of cases pending before courts throughout India (31,367,915 in 2013). One wonders how long the litigants of this country will have to suffer without having the right to approach the courts and have their cases disposed of in a timely manner! The adage ‘justice delayed is justice denied’ is very appropriate to quote at this point to demonstrate the plight of the litigants if this NJAC case is not decided in an expeditious manner.
Fortunately, the framers of the Constitution of India have had the foresight to perceive such a situation and have, therefore, introduced Articles128 and 224 A respectively, both of which deal with the appointment of retired Judges at the Supreme Court and High Courts, and the implementation of these Articles, more so Article224 A at this juncture, will greatly benefit the dispensation of justice.
The language adopted by the framers of the Constitution for Articles 224 A and 128 respectively are very similar, but for the difference in the marginal note, which in Article 128 relates to the attendance of retired Judges at the sittings of the Supreme Court. Article 224A was in fact very much part of the original text of the Constitution but was at that time numbered as Article 224. The language adopted in this Article was identical but its marginal note during that period read as ‘Attendance of Retired Judges at Sittings of High Court’. The Article 224A was inserted and introduced by the Constitution (Fifteenth Amendment) Act, 1963, and the marginal note of the Article eventually became ‘Appointment of Retired Judges at Sittings of the High Court.’ Articles 128 and 224 A, have both been derived and coined from Section 8 of the Supreme Court of Judicature (Consolidation) Act, 1925, which relates to the Supreme Court of Judicature in England. Under the Act, Section 8 reads as follows:
“The Lord Chancellor may at any time, subject to the provisions of this section, request any person who has held the office of the Judge of the Court of Appeal or of a Judge of the High Court to sit and act as a Judge of the Court of Appeal, and every such person so requested shall, while so sitting and acting have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a Judge of the Court of Appeal
Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act as a Judge of the Court of Appeal unless he consents so to do.”
Having briefly explained the minute difference between Articles 224 A and 128, it would be appropriate to restrict the scope of this piece only to Article 224 A, as its application would greatly benefit the High Courts of the state, more so than the Supreme Court, keeping in mind that more than 90% of the vacancies have already been filled at present at the Supreme Court.
Article 224A, as it is found at present, starts with the non-obstante clause and provides that notwithstanding anything contained in chapter V of Part VI of the Constitution, the Chief Justice of a High Court for any state may at any time, with the previous consent of the President of India, request any person who has held the office of a Judge of that Court or any other High Court to sit and act as a judge of the High Court for that state. The Article further provides that every such person so requested shall, while so sitting and acting be entitled to such allowances as the president may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a Judge of that High Court.
According to the proviso to the Article, no person would be required to sit and act as a judge of the High Court unless he consents to do so. The Article further makes it clear that the person while so sitting and acting shall have all the jurisdiction, powers and privileges of a judge of the High Court, but shall not otherwise be deemed to be a Judge of that court.
The Supreme Court of India has had an opportunity to extensively analyze the objective and purpose behind introducing Article 224 A of the Constitution in Krishan Gopal vs Shri Prakash Chandra &Ors. According to the Apex Court, as per Article 224 A, the words ‘while so sitting and acting’ demonstrate that the person requested not merely has the jurisdiction, powers and privileges of a judge of the High Court, but he also sits and acts as a Judge of that court. This thereby mean that these words do not contemplate that the person so requested has the powers, privileges and jurisdiction only when he sits in court during court hours, but in fact implies that during the period a person assumes the position of a judge at a High Court, at that point of time, s/he has the jurisdiction, privileges and powers of a sitting Judge of that court. At this point it is imperative to question the significance of the words ‘but shall not otherwise be deemed to be a Judge of that Court’.
According to the Supreme Court, these words indicate that in matters not relating to jurisdiction, powers and privileges the person so requested shall not be deemed to be a Judge of that Court. The term ‘otherwise’, which means ‘in other ways or circumstances’, would, therefore, by necessary implication, accentuate and highlight the fact that for purposes of jurisdiction, powers and privileges the person requested under Article224 A is a Judge of the concerned High Court. This means that for any purpose other than those of jurisdiction, powers and privileges, the person so requested shall not be deemed to be a Judge of that Court. In fact, the introduction of the word ‘deemed’ only goes to demonstrate further that the person who sits and acts as a judge of the High Court under Article 224A is a judge of the said High Court only for the purposes relating to jurisdiction, powers and privileges, and not to be considered as a Judge of the Court by a legal fictionn otherwise. Therefore, the basic distinction between a person who has been appointed as a judge as per Articles 217(1) or 224(1) and Article 224 A is that, as per Article 224 A, a person would not be permitted to be transferred to another court as per Article 222 of the Constitution or; being a retired Judges/he would obviously be the senior most member of that High Court, yet s/he would not be entitled to any seniority in the order of Judges or; the fact that a retired judge appointed will only be entitled to such allowance as the President of India may by order determine or; that the provisions of the High Court Judges (Conditions of Service) Act, 1954 also would not be applicable to them or; that there is no fixed tenure for such appointment and it would continue for such period as may be fixed by the president in his order of consent.
To succinctly summarize what has been stated in the above paragraphs, firstly, while the appointment of permanent judges under Article 217(1) or of Additional and Acting Judges under Article 224 (1) are made by the President of India under his warrant, under Article 224 A, the Chief Justice of a High Court can directly appoint a retired judge of that High Court or any other High Court in consultation and approval of the president. This point demonstrates that unlike the appointment of judges under Articles 217 or 224 of the Constitution, wherein the Chief Justice of a particular state is consulted by the collegium of the Supreme Court to decide upon the elevation of a judge, under Article 224 A, the framers of the constitution have thought it fit to provide adequate independence and discretion to the chief justice of a particular High Court in direct consultation with the president to make the appointment of a retired judge. This in fact is more advantageous, considering the present NJAC situation as appointments of retired Judges can be made expeditiously without unnecessarily consulting or involving the Supreme Court thus, serving the immediate purpose of filling the huge void of the lack of High Court Judges throughout the country. Secondly, the Chief Justice of a High Court while considering the appointment of a retired judge of a High Court need not restrict himself/herself to a particular state but can do so from any retired Judge throughout the country and this thereby gives a lot of flexibility for the Chief Justice while making a choice. Thirdly, the retired Judge who is appointed, will be equated to a sitting Judge of the High Court only for the purpose of jurisdiction, powers and privileges but not otherwise. Lastly, and most importantly, the Judge who is to be appointed must provide his/her consent. It is evident from this that the request made by the Chief Justice to the person who has held the office of a Judge of that Court or any other High Court is to sit and act as a Judge of the High Court for that State and this must be duly accepted by the retired Judge. In fact, the reason why consent of the retired Judge to accept an offer of appointment is required is that after having retired from service, he is not bound by the conditions of service of a High Court Judge (Union of India v. Sankalch and Himatlal Sheth (1977) 4 SCC 193).
The Law Minister of the Country, Sadananda Gowda has some time back expressed his anxiety over the large vacancies of judges in the High Courts throughout the country and has blamed the collegium system for contributing to it. Although the law minister is partially right in holding the collegium system accountable, there are many other reasons and factors that have contributed to this situation, such as lack of infrastructure, funds for salary and technological upgradation, etc. In fact, in the recent conference of the Chief Justices with Chief Ministers, it was decided amicably that no new appointments would be done until and unless proper infrastructure is created for the smooth functioning of the system. But the reason for the vacancies is the not the focus of this note and can be a subject of another debate. The fact of the matter is that the Judges-to-people ratio is woefully low in India, which is around 15.5 per 10 lakh Indians.
Besides this, the institution of cases in courts far exceeds their disposal. In fact, the average disposal per judge comes to around 2,370 cases in High Courts and 1,346 in Subordinate Courts calculated on the basis of disposals and Judges’ strength in December 2010. There is a requirement of about 1,539 High Court Judges and 18,479 subordinate Judges to clear the backlog. As per a recent statement showing the approved strength, working strength and vacancies of judges in the Supreme Court of India and the High Courts uploaded by the Department of Justice in its website on 1.06.2015, against a sanctioned strength of 1017Judges in 24 High Courts, there are only 646 Judges at present, with almost 371 posts or nearly 36% vacant. The Allahabad High Court shockingly has the highest vacancies with 81as against a sanctioned strength of 160 Judges. In fact, as per the recent statement by the Law Minister, there are about 3.2 crore cases pending throughout all Courts in the country out of which the High Courts have contributed more than 44 lakhs to this number.
The following pictorial figures provided by the Law Ministry will demonstrate the worrying state of affairs of the judicial system in this country, and it is the litigants who have to face the brunt of the indecisiveness and lackadaisical attitude demonstrated by the various organs of our State.
What has been demonstrated until now is that there is nothing that has effectively been done to confront or curb the glaring shortage of Judges throughout various Courts and the shocking pendency of cases, at present crossed over 3 crores. With the collegium system now done away with, the introduction of the NJAC and the matter pending before the Supreme Court not seeming to be decided any time soon, it is imperative that something is done expeditiously to resolve this and not let the disease of ineptitude and inefficiency spread and affect innocent litigants of this country. The framers of the Constitution have envisioned such situations and have for this very purpose introduced Articles such as 224 A, to be utilized intelligently and to assist in the speedy and effective dispensation of Justice. In fact, a Direct Taxes Enquiry Committee was set up by the Government of India in 1970, with Mr. K.N. Wanchoo, a retired Chief Justice of the Supreme Court of India, as its Chairman, who suggested that Article 224 A be applied to clear the backlog of tax cases, which clearly demonstrates that this Article is needed to be applied at times of desperate need for the greater good of dispensation of Justice.
In the recent Chief Ministers and Chief Justices Conference, it was decided that no new appointments would be made until and unless proper infrastructure is created for the smooth functioning of the system. This irresponsible statement only makes matters worse, considering the present despairing situation the judicial system of this country has put itself in. The judiciary has in our democracy always been considered as a last ray of hope for desperate litigants and it is their rightful duty not to let down the citizens of this country. It is the right time for the respective Chief Justices, who are the judicial leaders of a state, to inspire confidence in the people, especially considering the fact that they can do something about eradicating this problem and creating a minor dent in backlog of cases, at least in a small way, by applying Article 224 A. In fact, the High Courts that apply this Article will get veterans who have had ample experience and exposure in dealing with pressure situations and, additionally, the Chief Justice will also have the discretion of choosing a retired judge based on his past performance, which in a way is much more effective for the dispensation of Justice than having a new judge come in either through Articles 217 or 224.
The respective High Courts must in fact formulate a policy wherein if at any point of time the judicial strength in a particular High Court drops to 80% or below, then under such a scenario, if there are not going to be any new appointment of Judges as per Articles 217 or 224, the Chief Justice of the respective High Court must automatically consider applying Article 224 A, which is available at his/her disposal. The Chief Justice can in fact also have a regular list of retired Judges and have it updated from time to time, to call upon them if the need occurs. But having said this, since Article 224 A requires the consent of these retired Judges, it is equally the responsibility of these people to stand up to the occasion and come forth and act in the interest of Justice, even if it be at the cost of their private practice as Senior Advocates or Arbitrators. The government in turn should also act reasonably and responsibly in ensuring that the NJAC is decided expeditiously by not prolonging their arguments and cooperate with the Supreme Court in ensuring that something effective is done in the near future to fill the gaping voidness that has been created collectively by both the organs of our State. The right time to act is, therefore, now and hopefully there will soon be ‘ache din’ for the litigants of this country.
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