ACTIVATION OF ARTICLE 224-A : The “dormant” Article 224A of the Constitution was activated by the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ have issued some general guidelines 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.
Article 224A provides for appointment of ad hoc judges in the High Courts based on their consent.
HISTORY OF ARTICLE 224-A :
Article 224A was numbered as Article 200 in the Draft Constitution and discussed by the Constituent Assembly on 7th June 1949.
This Article 224-A 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.
However, same provision was re-introduced vide Article 224A by the Constitution (15th Amendment) Act, 1963.
TRANSITORY PROCEDURE : The Supreme Court has clarified that this is a “transitory methodology” and does not constrain the regular appointment process. The government, which did not oppose the proposal, but wanted the vacancies to be filled up first, would do well to expedite the regular appointment process from its end, and give up its propensity to hold back some recommendations selectively.
POWER & POSITION OF ADHOC JUDGES : 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 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 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.
NO TRANSFER : 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.
NO PENSION : On the issue of entitlement of allowances of such an ad hoc judge, in Justice P Venugopal vs. Union of India and Ors., 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.
CONSENT IS MUST : In Union of India vs. Sankalchand Himatlal Sheth, 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.