Opinion Collaborative exercise

The Supreme Court ruling on Tuesday emphasising the need to appoint ad-hoc judges in high courts as an emergency measure to cope with mounting backlog of cases has signalled an elephantine crisis in the judiciary. According to the court’s own admission, an estimated 57 lakh cases are pending in the 25 high courts across the country at a time when the vacancies for the post of high court judges is constantly over 40 per cent in the last two years. The restricted functioning of the courts through videoconferencing due to the COVID-19 pandemic has only added to the urgency to resolve this crisis.

The three-judge SC bench headed by Chief Justice SA Bobde has two prescriptions to address the situation — judicially mandating the appointment of ad-hoc judges to high courts when vacancies cross a threshold and fixing timelines for the government to make appointments based on the recommendations of the collegium. The push to appoint ad-hoc judges as per Article 224A of the Constitution is a policy response that could temporarily alleviate the crisis. Although it has no in-principle resistance to appointing ad-hoc judges, the government said the emergency provision must be resorted to after the existing vacancies are filled in. But the court overruled the argument as “self-defeating” even as it called the exercise a “collaborative process between the Executive and the Judiciary.” In giving four weeks to act on the recommendations of the collegium, the SC has essentially altered the Memorandum of Procedure (MoP) that has been renegotiated on the administrative side through a judicial order. The Centre has pointed that of the 416 vacant HC judge posts, no recommendation had been made by HC collegiums for 220 posts. Although the court acknowledges that it is “of utmost importance that the flow of recommendations continues” from the high courts for the appointment process to work successfully, it does not mandate any timelines for the judiciary itself. Except for disruptions due to elevation of a judge to the SC or a transfer, vacancies can be anticipated fairly accurately and planned for by collegiums.

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Without addressing the lacunae within, unilaterally setting tasks for the government on the judicial side upsets the carefully evolved collaborative process. With the second wave of the pandemic pushing courts to limited function once again, the crisis is only set to deepen further. It is imperative that the government and the collegium work out a real consensus at the earliest for a functional judiciary.