LOK PRAHARI v. UNION OF INDIA & Ors.

1.5 The Supreme Court collegium, which is the first three judges, thereafter bestows its consideration on these names after obtaining the opinions of the consultee judges. Those names which find approval of the collegium are then recommended for appointment to the Union of India. At that stage, the Government either proceeds to appoint the judges or it may have some reservations, in which case it would be within their right to return the recommendations with the reservations they have over the appointment. On reconsideration, if the recommendation is reiterated, in terms of the prevalent legal position, the appointment has to be made. The delays in this is a matter of concern as the recommendation of the collegium should not remain pending for a long period of time. The said process should be completed at the earliest. In some of the courts 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. The fact remains that the said process has not resulted in filling up of vacancies for many years. It is not as if the vacant posts are a small fraction, as it is noticed that they have been hovering around the figure of 40% vacancies. [Paras 26, 27][338- E-H; 339-A]

1.6 There is little doubt that challenge of mounting arrears and existing vacancies requires recourse to Article 224A of the Constitution to appoint ad-hoc judges which is a ready pool of talent, (of course subject to their concurrence) as a methodology especially for clearing the old cases. The existing strength of permanent and additional judges can be utilized for current and not so old cases. The ad-hoc judges are absolved even from the administrative responsibilities. They can concentrate on old cases which are stuck in the system and may require greater experience. The very provision makes it clear that it does not in any way constrain or limit the regular appointment process and consent of the retired judge is sought to sit and act as a judge of the High Court. One may say that this is largely a transitory methodology till all the appointment processes are in place, though that may not be the only reason to take recourse to the said Article. [Para 40, 42][342-E-F; 343-B-C] A B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 321

1.7 This Court would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation, certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. Thus, there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to. This figure is placed looking to the entire scenario where sometimes it may be difficult to find the requisite talent at a particular stage which may have to await some time period. 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. [Para 43][343-C-E]

1.8 The collegium of the Supreme Court has an important role to play in the appointment of judges of the High Court. In the said conspectus, the exercise by the Chief Justice of the High Court, the authority vested under Article 224A of the Constitution would require a prior consent from the judge concerned, and that recommendation in turn has to be routed through the collegium of the Supreme Court. Of course, the previous consent of the President of India (as advised) is necessary - but looking to the very nature of this appointment, which is of a retired judge who for his judicial appointment has gone through the complete process, time period of maximum three months is more than sufficient to carry the process through all stages. This in turn would be facilitated if the Chief Justice of the High Court takes the initial steps at least three months in advance so that there is no unnecessary delay in this regard. [Para 44][344-A-C] SP Gupta v. Union of India [1982] 2 SCR 365; Supreme Court Advocates on Record v. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Re: Special Reference 1 of 1998 AIR 1999 SC 1 : [1998] 2 Suppl. SCR 400; Supreme Court Advocates-on-Record Association and Anr. v. Union of India 2015 11 SCALE 1 – referred to. A B C D E F G H 322 SUPREME COURT REPORTS [2021] 3 S.C.R.

1.9 There is difference in the manner of appointment of permanent and additional Judges, and ad hoc judges in the High Court. Thus, two scenarios of appointment of Judges arise under Article 217 of the Constitution of India and the appointment has to be by the President by warrant under his hand and seal (Article 224 refers to the appointment of Additional and acting Judges). On the other hand, the appointment of a retired Judge as an ad hoc Judge of the High Court under Article 224A of the Constitution albeit forming part of the same Chapter V of the Constitution of India begins with a non obstante clause and provides for the Chief Justice of a High Court to 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. On the consent of the President being granted, the Secretary in the Government of India, Department of Justice is to inform the Chief Justice of the High Court and to issue necessary notification in the Gazette of India as per the MoP. The MoP has been framed under an administrative discussion and cannot be said to be law declared by this Court. It can always be varied. [Para 45][344-D-G]

1.10 In carrying out the said exercise, the Chief Justice of the High Court would have to bestow his consideration on the aspect as to who would be the suitable judge to be appointed as an ad-hoc judge and what is the time period for which the person has to be so appointed. This in turn will depend on the data of pendency of the different nature of cases, and the expertise of the judge especially in the areas where there is a large volume of pendency - as the objective is to clear the old cases which are stuck in the system. Such consideration of objective criteria becomes necessary to have transparency in the system. [Para 46][344-G-H; 345-A-B]

1.11 On the aspect of allowances as admissible to an ad- hoc judge to be determined by the President of India, it is trite to say that despite the voluntary nature of work no one would like to accept allowances less than what are admissible to a sitting judge. Thus, the same monetary benefits and privileges should be payable/available to an ad-hoc judge as admissible to a judge minus the pension. That can be the only methodology it is considered appropriate to follow. [Para 48][345-C-D] A B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 323

1.12 A Common theme of the various suggestions placed is that there is a definitive need for activating the provision. There are differences of perception with respect to different aspects such as, the trigger point to activate the provision, suggestion of an embargo situation, the methodology of appointment, the role of ad hoc Judges, age limit, tenure of appointment, etc. A common need has been felt to give guidelines to facilitate some element of uniformity in taking recourse to this dormant provision. It is also a common ground, with which it is agreed, that while laying down guidelines, a periodic review of this experiment would be required and there may be occasions to suitably modify the guidelines which are proposed to be laid down. Thus, it would not be appropriate to close the present proceedings but instead a concept of continuing mandamus would be appropriate in the present proceedings to work out the most effective method of taking recourse to Article 224A of the Constitution. [Para 49][345-E-G]

1.13 The principle of continuing mandamus forms part of the Constitutional jurisprudence and the term was used for the first time in Vineet Narain v. Union of India’s case. The practice of issuing continuing directions to ensure effective discharge of duties was labelled as a “continuing mandamus”. Unlike a writ remedy, a continuing mandamus is an innovative procedure not a substantive one which allows the Court an effective basis to ensure that the fruits of a judgment can be enjoyed by the right- bearers, and its realisation is not hindered by administrative and/ or political recalcitrance. It is a means devised to ensure that the administration of justice translates into tangible benefits. [Para 50][345-H; 346-A-B] Vineet Narain v. Union of India (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 – relied on.

1.14 While emphasising that recourse to Article 224A is the necessity of the day, and without inhibiting the expanse of the powers conferred on the Chief Justice of the High Court as per the Constitution, it would be in the fitness of things to lay down some guidelines for assistance of the Chief Justices of the High Courts and to make the provision a ‘live letter’. It might be noticed that it is a common case that the present proceedings A B C D E F G H 324 SUPREME COURT REPORTS [2021] 3 S.C.R. are not adversarial but a method to make the provisions of Art. 224A into a practical and working arrangement. [Paras 51, 52][346-C-D, E]

#2. Guidelines: i. Trigger Point for activation: The 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 Trigger Point cannot be singular and there can be more than one eventuality where it arises-if the vacancies are more than 20% of the sanctioned strength, the cases in a particular category are pending for over five years, more than 10% of the backlog of pending cases are over five years old, 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, even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more. [Para 53][346-F-H; 347-A-C] ii. Embargo Situation Recourse to Article 224A is not an alternative to regular appointments. It is clarified that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise. The data placed before this Court would suggest that there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline. Thus, the parameter adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A. [Paras 54,55][347- C-E] A B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 325 iii. Pre-recommendation process: Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog. The Chief Justice should prepare a panel of Judges and former Judges. This would be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to t ake some tim e of f before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court. [Para 55][347-F-H; 348-A] iv. Methodology of Appointment: Para 24 of the MoP lays down a procedure for appointment under Article 224A. It is not law laid down in this behalf under Article 141 of the Constitution but as a first step it may be more appropriate to follow this procedure laid down in para 24 of the MoP to see the progress made and impediments, if any. Since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period. [Para 56][348-B-C] v. Time to complete the process: The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required t o complete the process in case of a regular appointment of a Judge under Article 217 or 224. In view of number of aspect s not required t o be adverted to f or appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, A B C D E F G H 326 SUPREME COURT REPORTS [2021] 3 S.C.R. A thus, ideally a Chief Justice should start the process three months in advance for such appointment. [Para 57][348-D-E] vi. Tenure of Appointment: The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years. [Para 58][348-F- G] vii. Number of Appointments: At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court. However, it is clarified that an ad hoc Judge(s) would not be part of the sanctioned strength of Judges of the High Court to which they are appointed. [Para 59][348-G-H] viii. Role of ad hoc Judges: a. The primary objective being to deal with long pending arrears, the said objective would be subserved by assigning more than five year old cases to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind. It is further clarified that an ad hoc Judge would not be entrusted any administrative work, as such entrustment would defeat the very purpose of appointment of ad hoc Judge(s), which is to clear the backlog of old cases. [Para 60][349-A-C] b. As regards the issue of constitution of Benches of an ad hoc Judge and sitting Judge in matters to be heard by Division Bench and as to who would preside, the Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them. It is made clear that because of the very nature of the profile and work to be B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 327 carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance. [Para 61][349-C-D] ix. Emoluments and Allowances: a. 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. This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited in terms of the aforesaid guidelines. Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances. It is clarified that it is a misconceived notion that there would be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks. [Paras 62-63][349-E- H; 350-A] b. It is made clear that when reference is made to allowance/ perks/perquisites all benefits as are admissible to the permanent/ additional Judge(s) would be given to the ad hoc Judge(s). For clarity it is said that as far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions. For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges. The Second Schedule, Part D of the Constitution of India stipulates the emoluments and benefits that have to be conferred on the judges of the Supreme Court and of the High Courts. [Para 64][350-A- C]

#3. The first step is taken with the hope and aspiration that all concerned would co-operate and retiring/retired Judges would A B C D E F G H 328 SUPREME COURT REPORTS [2021] 3 S.C.R. come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, there will be endeavour resolve them out. The apprehensions, if any, must be set aside to chart this course and there will be a way forward. In view of the requirements of a continuous mandamus to see how a beginning has been made, the matter is listed after four months calling upon the Ministry of Justice to file a report in respect of the progress made. [Paras 65-66][350-D-E] Krishan Gopal v. Shri Prakash Chandra & Ors. (1974) 1 SCC 128 : [1974] 2 SCR 206; Justice P Venugopal v. Union of India and Ors. (2003) 7 SCC 726 : [2003] 3 Suppl. SCR 286; Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193 : [1978] 1 SCR 423; Anna Mathew v. N. Kannadasan 2009 (1) LW 87 (Mad) 47); Ashok Tanwar and Anr. v. State of H.P. and Others (2005) 2 SCC 104 : [2004] 6 Suppl. SCR 1065; Indian Society of Lawyers v. President of India (2011) 5 All LJ 455 (FB); Supreme Court Advocate-on-Record Association v. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Supreme Court Advocates-on-Record Association & Anr. v. Union of India (NJAC case) (2016) 5 SCC 1 : [2015] 13 SCR 1 – referred to. Constituent Assembly Debates Vol. VIII, 181; 124th report of the Law Commission; 79th Report of the Law Commission of 1979; 188th Report of the Law Commission of 2003; A. M. Singhvi, “Beating the Backlog Reforms in Administration of Justice in India,” in S. Khurshid et. al., (eds.) Judicial Review- Process, Powers, and Problems (Essays in Honour of Upendra Baxi), (Cambridge University Press 2020), page 53 – referred to. Case Law Reference [1974] 2 SCR 206 referred to [2003] 3 Suppl. SCR 286 referred to [1978] 1 SCR 423 referred to Para 15 Para 16 Para 17 A B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 329 [2004] 6 Suppl. SCR 1065 referred to [1993] 2 Suppl. SCR 659 referred to [2015] 13 SCR 1 [1982] 2 SCR 365 referred to referred to [1993] 2 Suppl. SCR 659 referred to [1998] 2 Suppl. SCR 400 referred to (2015) 11 SCALE 1 referred to [1997] 6 Suppl. SCR 595 relied on Para 18 Para 30 Para 31 Para 44 Para 44 Para 44 Para 44 Para 50 CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1236 of 2019. (Under Article 32 of The Constitution of India) Petitioner in person. K.K. Venugopal, AG, R.S. Suri, ASG, Atmaram NS Nadkarni, Gaurav Pachnanda, Ravindra Shrivastava, Arvind P. Datar, Vijay Hansaria, Ajit Kumar Sinha, R. Basant, Soumya Chakraborty, Vikas Singh, Sr. Advs., B.K. Satija, Rajat Nair, Ms. Neela Kedar Gokhle, Gurmeet Singh Makkar, D.L. Chidananda, Salvador Santosh Rebello, Alok Kumar Pandey, Ashwin Kumar D.S, Ms. Preetika Dwivedi, Divyakant Lahoti, Parikshit Ahuja, Ms. Praveena Bisht, Ms. Madhur Jhavar, Ms. Vindhya Mehra, Kartik Lahoti, Ms. Shivangi Malhotra, Jaigopal Saboo, Romy Chacko, Shakthi Chand Jaidwal, Aniruddha P. Mayee, Sahil Tagotra, Ms. Avni Sharma, V. N. Raghupathy, Md. Apzal Ansari, Sharan Thakur, Mahesh Thakur, Siddhartha Thakur, Arjun Garg, Ms. Shrutika Garg, Sibo Sankar Mishra, Ashok Kumar Singh, Rajiv Sinha, Niranjan Sahu, Umakant Mishra, Kunal Chatterji, Ms. Maitrayee Banerjee, Pravar Veer Misra, Gopal Singh, Harpreet Singh Gupta, Vidur Dwivedi, Mukul Kumar, Ms. Uttara Babbar, Manan Bansal, Ms. Shweta Mohta, Apoorv Kurup, Ms. Nidhi Mittal, Abhimanyu Tewari, P.I. Jose, Ms. Sneha Kalita, Prashant K. Sharma, Ms. Radhika Gautam, Ashwarya Sinha, Ms. Priyanka Sinha, Ms. Shubhi Sharma, T. G. Narayanan Nair, Manu Krishnan, V. Balachandran, Siddharth Naidu for M/s KSN & Co., Sanjai Kumar Pathak, Arvind Kumar Tripathi, Ms. Shashi Pathak, Ms. Aruna Mathur, Avneesh Arputham for M/s Arputham Aruna And Co, Vinay Arora, Naresh K. Sharma, Advs. for the Respondents. A B C D E F G H 330 SUPREME COURT REPORTS [2021] 3 S.C.R. A The following Judgment of the Court was delivered J U D G M E N T

#1. The intent of our order today is to activate a dormant provision of the Constitution of India – Article 224A – for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending 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. Any Constitution has to be dynamic, and thus, even if the intent behind including the provision (as it appears from the Constituent Assembly Debates) was slightly different, nothing prevents it from being utilised to subserve an endeavour to solve an existing problem. For as it is always said, ‘change is the only constant’.

#2. India was fortunate to have some of the best minds work on the framing of our Constitution as members of our Constituent Assembly. The Indian Constitution is an elaborate one, taking cues from the experience of various democracies. One of the essential aspects of our Constitution has been the separation of powers between the Judiciary, Executive, and Legislature.

#3. Chapter V of Part VI of the Constitution of India commencing from Article 214 upto Article 231 relates to the High Courts in the states. Article 217 provides for the appointment and conditions of the office of a Judge of the High Court, wherein the current age of retirement is 62 years. We may say that broadly, it is amongst the youngest ages of retirement of judges of the apex Court of a state in comparison with other democracies of the world.

#4. Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein. 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. The ground reality however, remains that while determining the strength of different High Courts, the practice that has been adopted is that about 25% of the strength consists of additional Judges.

#5. In the present case, we are concerned with Article 224A which reads as under: B C D E F G H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 331 “224A. Appointment of retired Judges at sittings of High Courts- A Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State, may with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and 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: Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.”

#6. The aforesaid Article begins with a non-obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court, to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting, such a judge 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; but for all other purposes shall not be deemed to be a High Court judge. The proviso stipulates that consent has to be obtained from the judge concerned.

#7. It is the say of the petitioner before us in this public interest litigation that a large number of vacancies of High Court judges coupled with mounting arrears is a scenario which requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India. The Historical Perspective:

#8. Article 224A was numbered as Article 200 in the Draft Constitution and discussed by the Constituent Assembly on 7th June 1949. The debate focused on the purpose and duration of the appointment of retired High Court judges. Three other specific issues were discussed: 1) whether a retired judge must consent to his appointment; 2) whether a retired judge draws salary after his appointment as an ad hoc judge; B C D E F G H 332 SUPREME COURT REPORTS [2021] 3 S.C.R. A 3) whether the appointment of ad hoc judges was to be made with the concurrence of the President. B C D E F G

#9. Some part of the debates indicate that the retired judge was to be invited back only for their expertise and experience to decide cases that were particularly difficult or important; and that it may not be advisable to call retired judges and asked them to clear off the arrears pending before the High Court. On the other hand, Dr. B.R. Ambedkar had clarified that the intent behind the appointment of ad hoc judges was as an alternative to the appointment of temporary or additional judges, which suggestion had not been accepted by the Constituent Assembly. Thus, ad hoc judges were not intended to be appointed for an indefinite length of time. In his words : “It seems to me that if you are not going to have any temporary or additional judges you must make some kind of provision for the disposal of certain business, for which it may not be feasible to appoint a temporary judge in time to discharge the duties of a High Court Judge with respect to such matters.”1

#10. The aforesaid provision, it was emphasized by Dr. Ambedkar, was borrowed (word for word) from Section 8 of the Supreme Court of Judicature (Consolidation) Act, 1925 in the UK, and similar provisions in America. It was explained that the proviso was inserted to avoid a situation where the refusal of a retired judge to accept the invitation could be treated as remiss of his conduct.

#11. Another important aspect as emerges from the debates, was that it was the view of Dr. Ambedkar himself that the matter of salary and benefits would be governed by the rules governing pension. Thus, all benefits would be admissible minus the pension; though the precise definition of “privileges” of an ad hoc judge was left to the Parliament to decide. The aspect of concurrence of the President was also debated and introduced to bring greater transparency in the process.

#12. The aforesaid provision for appointment of ad hoc judges was removed by the Constitution (7th Amendment) Act, 1956. The objective of that Act clarifies that this was done as the provision for recalling retired judges for a short period had been found to be neither adequate nor satisfactory. It was sought to be replaced by the current Article 224, 1 Speech by Dr. B.R. Ambedkar on 7th June 1949, Constituent Assembly Debates, Vol. VIII, ¶181. H LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) v. UNION OF INDIA & ORS. 333 making provisions for appointment of additional judges to clear off arrears and for the appointment of acting judges in temporary vacancies. A

#13. There appears to have been a legislative re-think as the provision for the appointment of ad hoc judges was reintroduced vide Article 224A by the Constitution (15th Amendment) Act, 1963. The Lok Sabha debates did not specifically refer to the philosophy behind the re- introduction, but this can be extrapolated from the purpose behind introducing ad hoc appointments in the Supreme Court of India. The debates do reflect the two points of view, i.e., a worry about a possible “demon of patronage” and on the other hand views being expressed that it was possibly better to call back a retired judge instead of appointing a member of the Bar for a few months. The amendments seeking to restrict the term of ad-hoc judges to three months was however, negated, while inserting this provision in the Constitution. Judicial Views :

#14. Now we turn to the aspects arising from the aforesaid provision being debated in certain judicial precedents.

#15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.2 - a Constitution Bench of this Court (five judges) ruled on the issue of whether a person sitting and acting as a Judge of the High Court under Article 224A of the Constitution has the jurisdiction to try an election petition under Section 80-A of the Representation of the People Act, 1951. Debate arose in the context of a judge of the Madhya Pradesh High Court who was sitting and acting as a judge of that Court under Article 224A of the Constitution, and his appointment was to last for a period of one year or till the disposal of elections petitions entrusted to him, whichever was earlier. In that context it was observed that if a person appointed under Article 224A of the Constitution was not considered to be a judge of the High Court for the purpose of jurisdiction, powers and privileges, the question of appointing such a person would never arise. The provision could not thus be rendered a dead letter. It was clarified that the effect of the provision would create a deeming fiction and the Court observed: “15. (…) The person requested while so sitting and acting shall have all the jurisdiction, powers and privileges of a judge of the High Court. Such a person shall not otherwise be deemed to be a 2 (1974) 1 SCC 128. B C D E F G H 334 SUPREME COURT REPORTS [2021] 3 S.C.R. A B C D E F G H judge of that Court. The words “while so sitting, and acting” show that the person requested not merely has the Jurisdiction, powers and privileges of a Judge of the, High Court, he also sits and acts as a Judge of that Court. Question then arises as to what is the significance of the concluding words “but shall not otherwise be deemed to be a Judge of that Court”. These words, in our opinion, 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 dictionary meaning of the word “otherwise” is “in other ways”, “in other circumstances”, “in other respects”. The word “otherwise” would, therefore, point to the conclusion that for the purpose of jurisdiction, powers and privileges the person requested shall be a Judge of the concerned High Court and for purposes other than those of jurisdiction, powers and privileges, the person requested shall not be deemed to be a Judge of that Court. It would, for example, be not permissible to transfer him under Article 222 of the Constitution. The use of the word “deemed” shows that the person who sits and acts as a Judge of the High Court under Article 224-A is a Judge of the said High Court but by a legal fiction he is not to be considered to be a Judge of the High Court for purposes other than those relating to jurisdiction, powers and privileges. (…)”

#16. On the issue of entitlement of allowances of such an ad hoc judge, in Justice P Venugopal vs. Union of India and Ors.,3 it was opined that an ad hoc judge does not become a part of the High Court and thus there is no question of computing his pension for the period he is appointed as an ad hoc judge. Thus, the ad hoc judge would not be entitled to further pensionary benefits after he demits the Constitutional office that he holds in terms of Article 217.

#17. It may also be appropriate to turn to some of the opinions expressed on the requirement of consent of a retired Judge. In Union of India vs. Sankalchand Himatlal Sheth,4 it was observed that the reason for insisting on consent was that a retired Judge cannot be compelled to work as an ad hoc judge against his consent. This is because he ceases to be a judge of the High Court on demitting office at the prescribed age and is not bound by the conditions of service.