In an attempt to undo the ‘tareekh pe tareekh’ culture in the higher judiciary, a bench led by Chief Justice of India Sanjiv Khanna recently lifted a constriction on high courts appointing ad hoc judges.
As per the National Judicial Data Grid’s dashboard, a whopping 66 lakh cases are pending in high courts across the country, 18 lakh of which are on the criminal side. Half of them have been pending for over five years. The ad hoc mechanism was formulated in a 2021 Supreme Court verdict that mandated it could be triggered if judge vacancy in any high court exceeds 20 percent. But that level limited the mechanism; hence the initiative to put it out of play.
Ad hoc appointees are retired judges who are hired for a specific purpose and a limited span of 2-3 years. Their appointments are not routed through the SC collegium. The 2021 verdict empowered chief justices of high courts to identify suitable retired judges for such postings, seek their concurrence, and communicate the choice to the respective chief ministers and governors, who would forward the recommendation to the Union law ministry for processing by the PM’s office after consulting the CJI. Since ad hoc judges are not allowed to perform any other legal work such as arbitration, their pay and perks would be on par with serving senior judges.
The primary objective of the mechanism is to deal with cases pending for over five years. Ad hoc judges would sit with other senior ones on division benches that hear criminal appeals. While the Khanna-led bench lifted the 20 percent vacancy cut-off, other trigger points in the judgement remain operational. For example, the mechanism also gets triggered if arrears in a particular category of cases exceed five years. While 27 percent of criminal cases await disposal in HCs for 5-10 years, the corresponding figure in that category goes up to 32 percent when the pendency is beyond 10 years. A recent conference called by the CJI to discuss clearing the backlog also dwelt on establishing evening courts.
If the ad hoc system finally picks up pace, it could well be a game-changer and a legacy-defining initiative of the CJI, whose short tenure will end mid-May.