MEMORANDUM OF PROCEDURE FOR APPOINTMENT OF JUDGES

Subject: Polity

Context: Supreme Court timeline for judges’ appointments a shift from Memorandum of Procedure.

Concept:

In setting a fixed timeline for the government for the process of appointment of judges, the Supreme Court, in its ruling on Tuesday, has essentially altered the Memorandum of Procedure (MoP) through a judicial order, and said the government must act on the names recommended for appointment within four months.
The MoP does not prescribe a timeline for the Centre to forward the recommendations.

Methodology proposed by Supreme Court for appointment of Ad-hoc Judges in HCs

The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if:

The number of judges’ vacancies is more than 20 per cent of the sanctioned strength; or

Cases in a particular category are pending for over five years; or

More than 10 per cent of pending cases are over five years old; or

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.

The apex court said that the Chief Justice should prepare a panel of judges after personal interaction with the concerned judge to take their consent.
The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
The number of ad-hoc judges in the court should be in the range of two to five for the time being depending on the strength of the High Court and the problem faced by it.
The court ruled that in case there is a need to constitute a Division Bench to hear a matter, it would comprise of only ad-hoc judges and not a mix of ad-hoc and sitting judges.
It also barred ad-hoc appointees from performing any other legal work i.e. advisory, arbitration or appearing in court for clients.
Their emoluments and allowances should be on a par with a permanent judge of that court minus the pension and they will be entitled to allowance/ perks/ perquisites as are available to permanent/ additional judge(s).

About Ad-Hoc Judges & Acting Judges in High Court

The President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years when:
There is a temporary increase in the business of the high court; or
There are arrears of work in the high court.
The President can also appoint a duly qualified person as an acting judge of a high court when a judge of that high court (other than the chief justice) is:
Unable to perform the duties of his office due to absence or any other reason; or
Appointed to act temporarily as chief justice of that high court
An acting judge holds office until the permanent judge resumes his office.
The Constitution provides that both the additional or acting judge cannot hold office after attaining the age of 62 years.

Constitutional Provisions for Ad-Hoc Judges in High Court

The SC had asked all 25 high courts to respond to a public interest litigation filed by Lucknow-based non-profit organisation, Lok Prahari, asking for the appointment of retired judges as ad-hoc judges under Article 128 of the Constitution.
Article 128 talks about “attendance of a retired judge” as the judge of the Supreme Court.
It states that the Chief Justice of India at any time, with the previous consent of the President, may request any person who has held the office of a judge of the Supreme Court or the high court to sit and act as a judge of the Supreme Court.
Under Article 224A, the retired high court judges can be appointed as ad-hoc judges to HCs.