New Delhi: Fourteen of the 25 high courts in India have supported the Supreme Court’s proposition to appoint ad hoc judges to overcome vacancy crisis, with some even suggesting a deviation from the normal procedure followed to make regular appointments of HC judges in which the central government is involved for providing its inputs on the candidate’s background.
The submission was made in view of the inordinate delay by the Centre in forwarding proposals to the Supreme Court collegium for scrutiny.
Among the 14 HCs, however, Madras, Calcutta and Karnataka HCs have said there is no need for ad hoc judges right now.
During a hearing Thursday before a bench led by Chief Justice S.A. Bobde, counsel for Madhya Pradesh, Madras and Kerala said if the recommendation made by the High Court Chief Justice for an ad hoc judge is sent to the government and the latter takes its own time to clear, the purpose to have ad hoc judges will be frustrated.
Rather, they advised, such proposals should be referred to the President directly. Also, since ad hoc judges would be retired HC judges, it would be a waste of time to let them go through the same “rigmarole” which they underwent when their names were forwarded for appointment as HC judges.
The submissions were advanced while the bench, also comprising Justice S.K. Kaul and Justice Surya Kant, was hearing a public interest litigation (PIL) filed by a Lucknow-based NGO, Lok Prahari, seeking a direction to have ad hoc judges in the Supreme Court as well as high courts, as is envisaged in the Constitution.
What the Centre says
The Centre, on its part, did not oppose the idea, but cautioned that recommendation for ad hoc judges should not be done in lieu of making regular appointments.
Additional Solicitor General R.S. Suri submitted that ad hoc judges should be preferred only after the chief justice of a high court has forwarded names for all the existing vacancies, and if there is any delay in finalising such appointments.
Suri emphasised that the due process, as outlined in the memorandum of procedure (MoP), must be followed to appoint ad hoc judges, which would require both the collegium and Centre to be in the loop.
Suri was told by the bench to file a detailed affidavit on the government stand, which the court will take up on 15 April.
‘Hope Centre is more proactive on ad hoc judges’
The judges, however, agreed with Suri’s view that no chief justice of a high court should have the right to make ad hoc judges unless he or she has made recommendation for all the vacancies.
“To have ad-hoc judges does not mean that the Chief Justice should stop recommending regular judges. This is why we want to keep the SC collegium in the loop,” CJI Bobde said, responding to the several high courts’ submission that to save time HCs must send their proposals on ad hoc judges directly to the President.
On the concern over the central government sitting over recommendations for regular appointments, the CJI said he expected the government to be more proactive on ad hoc judges.
He told Suri: “This is where we want the government to say that it will not take so much time or will clear the file in so much time. This (deadline for the government) is something that cannot be determined by a judicial order.”
Need to chalk out common protocol
At the end of an hour-long hearing, the bench asked the lawyers for all high courts to hold deliberations and chalk out a common protocol to appoint ad hoc judges.
The court enumerated the possible circumstances under which the Chief Justice of a High Court can initiate the process to appoint an ad-hoc judge and said the two pertinent conditions would be the pendency figure and the vacancy situation.
The two parameters would also be crucial to determine the number and term of ad hoc judges required by a HC, the bench said. The high courts were also asked to work out modalities for payment of allowances to such judges.
(Edited by Neha Mahajan)
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