Retired judges for backlog relief

The issue of judicial backlog in India’s High Courts has reached alarming proportions, threatening the promise of timely adjudication. The numbers paint a grim picture: 62 lakh pending cases clog the system, with criminal matters accounting for 18 lakh cases and civil disputes making up the remaining 44 lakh. These figures reflect the pressing need for systemic judicial reforms to prevent an erosion of public confidence in the rule of law. The roots of this crisis run deep. From the demand side, the High Courts face an overwhelming caseload due to their broad jurisdiction, expansive – and often excessive – government litigation, and fast shifts in socioeconomic levels. From the supply side, procedural complexity, Byzantine administrative practices, liberal case acceptance and a high degree of judge vacancies have slowed down disposal rates.

In response, the Supreme Court has recently sought to adopt a proactive approach in tackling the backlog. Through its directions in Lok Prahari v. Union of India, the Court has breathed new life into Article 224A of the Constitution, thereby allowing retired judges to sit and act as judges of High Courts. Article 224A was introduced through the 15th Amendment to the Constitution in 1963, at a period when the government was trying to find efficient means to increase the bench strength of High Courts. Under the framework, the Chief Justice of a High Court, with the prior consent of the President, may invite a retired judge of the same or different High Court to sit temporarily as an ad hoc judge.

The original goal was clear: address temporary caseload rises without calling for a long-term judicial expansion – a sensible, economical strategy based on resources. Furthermore, the parliamentary debates during the introduction of Article 224A underscored a guiding principle: the independence of the judiciary must remain intact. By stipulating that retired judges could only serve if the Chief Justice deemed it necessary, and that the President must assent to the request, the framers placed a series of checks to prevent inappropriate exercise of this power. The participation of several constitutional functionaries was meant to protect the bench’s dignity and shield it from unjustifiable influences.

However, for many years, this provision stayed essentially inert, a constitutional curio gathering dust in legal books. Only recently, when the crisis of judicial delays approached a breaking point, did the actual value of Article 224A began to be recognised. By means of its earlier directions in Lok Prahari v. Union of India, a Constitution Bench of the Supreme Court revitalised it in 2021. The Court laid down comprehensive guidelines for its implementation. Pertinently, the recent directions of the Court, by keeping in abeyance the conditions stipulated in its earlier judgement dated April 20, 2021, have removed the hurdles in the way of appointing ad hoc judges. The earlier directions had permitted recourse to Article 224A only if the High Court already had 80 per cent of their regular positions filled.

The Court has now allowed High Courts to appoint ad hoc judges up to 10 per cent of their sanctioned strength, with a minimum of two and a maximum of five per High Court. This pragmatic approach acknowledges varying case burdens across different jurisdictions. A particularly significant directive states that ad hoc judges will serve on benches alongside sitting judges, focusing on pending criminal appeals. This is a crucial step, as prolonged delays in resolving criminal cases have long plagued the justice system, leaving many undertrial prisoners languishing in jails. Ensuring the swift resolution of criminal appeals is both a constitutional necessity and a moral imperative.

Temporary solution

However, as we have noted, the causes of the pendency issue are several and span both the supply and demand sides. Moreover, the appointment of ad hoc judges might only be a band-aid fix failing to deal with the underlying causes of the issue. Beyond court openings, various administrative and procedural problems limit efficient case handling. Though e-filing systems and computerisation have been around for some time, the system mostly depends on labour-intensive, delay-sensitive paper submissions and conventional court procedures. Many High Courts, for instance, allow any filing error in an electronic petition to finally call for the provision of a physical copy, therefore compromising the practical advantages of digitisation. Ad hoc scheduling and regular adjournments, meanwhile, waste precious court time.

Further complicating the efficient organisation of daily court operations is the absence of simplified procedures to ascertain how much hearing time each item demands. Besides, excessive government litigation has to be addressed. Government agencies, whether state or federal, often jump into lawsuits as their go-to response, dragging old fights back to court or challenging every decision that doesn’t go their way – even when there’s hardly any money at stake. Organising screening mechanisms across government departments could help lower pointless paperwork.

No doubt the mechanism under Article 224A aligns with practices of Canada, South Africa and the UK. While the appointment of ad hoc judges may offer immediate relief, long-term solutions require structural reforms such as timely filling up of permanent vacancies and improving judicial infrastructure. A structured and transparent system for appointing ad hoc judges can significantly enhance results. Such reforms would actualise the constitutional tenets of justice while helping foster the nation’s developmental dreams and institutional stability.

(The writers are advocates in the Madras High Court)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.