LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS (RETD.) versus UNION OF INDIA & ORS.

Citation: [2021] 3 S.C.R. 317 · Decided: 20-04-2021 · Supreme Court of India · Bench: S.A. BOBDE, SANJAY KISHAN KAUL, SURYA KANT · Disposal: Directions issued

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Judgment (excerpt)

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LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N.
SHUKLA IAS (RETD.)
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 1236 of 2019)
APRIL 20, 2021
[S. A. BOBDE,CJI, SANJAY KISHAN KAUL AND
SURYA KANT, JJ.]
Constitution of India:
Art. 224A – Appointment of retired judges at sittings of High
Courts – Pendency of  57 lakhs cases in the High Courts along
with consistent ratio of vacancies of almost 40 per cent – Held:
Recourse to Art. 224A by appointment of ad hoc judges needed – It
would provide a ready-made pool of known judicial talent to deal
with the disposal of pending old cases – Certain checks and balances
to be provided for resorting to Art. 224A – Guidelines on aspects
such as, the trigger point to activate the provision, suggestion of an
embargo situation, pre-recommendation process, the methodology
of appointment, time to complete the process, tenure of
appointment, the number of appointments, the role of ad hoc Judges,
emoluments and allowances,  etc. to be arrived so as to facilitate
some element of uniformity  – Since periodic review would be
required to suitably modify the guidelines proposed, concept of
continuing mandamus would be appropriate – Thus, issuance of
guidelines for invocation of Art. 224A.
Arts. 217, 224 and 224A - Appointment of permanent and
additional Judges, and ad hoc judges in the High Court – Process
to be followed – Explained.
Art. 224 – Objective of – Explained.
Art. 224A – Historical perspective – Explained.
Constitutional jurisprudence – Continuing mandamus –
Concept of – Held: “Continuing mandamus” is a practice of issuing
continuing directions to ensure effective discharge of duties – Unlike
a writ remedy, a continuing mandamus is an innovative procedure
[2021] 3 S.C.R. 317
317
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
not a substantive one which allows the Court an effective basis to
ensure that the benefits 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.
Issuing guidelines and further listing the matter, the Court
HELD: 1.1 It is trite to say that there is a docket explosion
in our country and that it is difficult for adjudication to take place
within a reasonable period of time. This crisis situation must be
tackled. Some innovation is always the rule of the game. In the
present context, maybe a slightly different view has to be taken
in respect of the avowed purpose of Article 224A of the
Constitution of India providing for ad hoc judges. It is said so as
this Court is faced with the ground reality of almost 40% vacancies
remaining in the regular appointments (both permanent and
additional judges) over the last two years. A number of vacancies
arising every year are barely filled in by fresh appointments. Thus,
it remains an unfulfilled challenge to bring the appointment
process to such numbers as would be able to cover the vacancies
existing and arising. [Para 20][336-A-C]
1.2 The present system of appointments as envisaged by
the Constitution and as elucidated in the Collegium system makes
it clear that the first step is a recommendation from that High
Court by a collegium of the three senior-most judges presided
over by the Chief Justice of the High Court. This process in turn
requires wide consultation by the Chief Justice of the High Court
to identify the requisite talent, so as to make the
recommendations. Contrary to some portrayed beliefs as if this
is an extremely subjective system, every Chief Justice is actually
required to solicit names from different sources whether it be
sitting judges, retired judges, or prominent members of the Bar.
It is from this pool of talent that he selects, after a discussion
before the collegium, the most suitable candidates. It is thus, of
utmost importance that the flow of recommendations continues
for the appointment process to work successfully. The vacancies
existing and arising are always known, as a judge demits office in
the High Court on his 62nd birthday. The only exception can be
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an unforeseen eventuality or an elevation to the Supreme Court
of India. Thus, every endeavour has to be made to see that the
recommendations are made well in advance while maintaining a
balance between recommendations from the Bar and the
subordinate judiciary, about six months in advance as per norms
which w

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