Report No. 124
3.14. As stated earlier, in order to annihilate the monster of backlog, a multipronged attack is indispensable. Constitution makers had the vision to foresee that a situation may develop where the talent of retired Judges will have to be enlisted and, therefore, they had made ample provision in this behalf.
Article 224A of the Constitution provides that notwithstanding anything in Chapter V, Part VI, of the Constitution, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that High Court, to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of but shall not otherwise be deemed to be, a Judge of that High Court.
There is a proviso which says that this power could only be exercised with the consent of the person concerned. Rarely, if ever, this power is invoked.
3.15. Now in every High Court, as per the Table set out earlier1 there are numerous cases more than five years old. Some of them may have become obsolete; some of them may have become irrelevant; some may have as well abated and there may be some in which the parties have lost litigating interest sheer on account of delay in disposal of cases. Undoubtedly, there may be many in which the matter had to be adjudicated upon and judgment delivered.
1. See para. 3.1, supra
3.16. Most of the High Courts have their own buildings, except a State like Gujarat where the High Court is located in children's hospital. But that again is an exception. The sitting time in the High Court varies from 10 A.M. to 4 P.M. such as in Himachal Pradesh, to 11 A.M. to 4.45 P.M. In Gujarat and Maharashtra. Others have their local adjustments as per their requirements. High Court buildings are generally huge, well-furnished and having a modern library.
The use of the High Court building say between. 10 A.M. and 4.45 P.M., definitely reveals under utilisation of space accommodation and facility. Now if we combine these two things, namely, non-utilisation of the pool of talent represented by retired Judges of the High Court and under-utilization of the capital equipment like buildings, furniture and library, the solution manifests by itself. A developing country like India must fully utilize its resources both as to capital expenditure and talent. The choice is accordingly dictated.
3.17. The High Courts generally work for five hours with lunch hour varying from 45 minutes to 1 hour. It is felt that this lunch hour is unusually long in duration. A break of 30 minutes would be sufficient for resuscitating the retired nerves. Again, the working hours from 11 to 5 with variations are inconvenient in the sense that neither much work can be done at home in the morning nor much work can be attended to in the evening for want of staffing facilities.
It is not for a moment suggested that the shift system of the industry is being imported into the working of a dignified institution like the High Court Judges and lawyers enriched by professional expertise. However, under-utilization of capital assets, coupled with non-utilization of experienced talent pool, results in national wastage. Accordingly, it is time to have a second look at both the situations.
3.18. As pointed out a little while earlier, Judges retiring from the High Court generally settle down where the principal seat of the High Court is located or if recruited from the Bar attached to places where the Benches are set up, they settle down on retirement in the same place. It is, therefore, justifiable to assume that at every place where there is a seat of High Court, principal as well as seat for the Bench, there is available a pool of talent represented by retired Judges well-versed in the art of adjudication and conversant with justicing process.
It is, therefore, depending upon the requirements, necessary to recall these retired Judges to offer their services to the society, which gave them the status, position and dignity in life, as High Court Judges. Depending upon the availability of retired Judges who settled down where the High Court has its principal seat or where its Bench is functioning, the Chief Justice should enlist the services of retired Judges for setting up Benches composed of two Judges to do civil, criminal and miscellaneous work in the morning.
The Benches of retired Judges may start functioning at about 8.30 A.M. and work up to 12 or 12.30 noon. The High Court Judges will assemble from 12 or 12.30 noon, as the case may be, and work up to 5.30, claiming their half an hour lunch hour. This will have a double advantage, firstly, of utilising the unutilized capacity of the buildings, centralised offices, and facilities, including library, as also utilizing the rich talent pool represented by retired Judges.
Its second advantage would be that these retired Judges would be quick in disposal of the work on account of the rich experience and expertise in justicing processes. Simultaneously, they would not be burdened with any administrative or admission work which would permit them to devote their full-time to the hearing of old matters. No doubt staff strength will have to be augmented proportionate to the number of Judges who would work as ad hoc Judges, suck as, court masters, stenographers, clerks and Class IV staff.
3.19. The Chief Justice, depending upon the pendency of old matters, should draw a line of the base year and then direct that all matters pending up to the base year and admitted before the base year should be exclusively assigned to the retired Judges. Where the Bench is of two Judges, the burden of writing judgments will be equitably distributed.
These retired Judges will have whole of afternoon to their credit so that they do not suffer any excessive load. Correspondingly, the sitting Judges will have the whole of morning to their credit to write their judgments, to dispose of their administrative work and even to read the matters in the evening after returning home. The Law Commission is confident that this recommendation, if carried out, would make a dependent into the arrears because 3 to 4 Benches will simultaneously deal with old matters only.
3.20. Whenever a suggestion is made that Judge strength should be revised upward and more Judges should be appointed, simultaneously the question of capital expenditure arises. A point would be made that existing building facility is insufficient, house accommodation for Judges is not available in big cities like Bombay, Calcutta, Madras, Hyderabad, Ahmedabad and such other places. New cars have to be bought by the High Court to provide transport facilities.
New furniture, furnishings, typewriters and other things will have to be purchased and the cost of capital expenditure would outweigh the benefits flowing from the suggestion. The approach herein indicated and the recommendation made in the preceding paragraph takes care of saving on capital expenditure. The same building will be utilized in which the High Court at present sits. Judges who have retired have made their own transport arrangements.
So no new cars will be required to be purchased for them. They have their houses, their telephones and such other things which they need for the purpose of working as Judges. The library facilities will be available to them. So, there will be a negligible increase in capital expenditure.
3.21. It is, however, a moot question whether the present approach, both of the Government of India and the State Governments, in the matter of re-employment of anyone who has retired works as a disincentive. All such re-employed persons with be offered last pay minus pension, even deducting unjustly, unfairly and illegally, the pension equivalent to gratuity which they had already earned by rendering service for such long period as entitled them to their retrial benefit. Therefore, a review of the conditions on re-employment is of urgent necessity.
Article 224A itself provides a further disincentive. It says that a retired Judge, when recalled to act as a Judge, would be entitled to such allowances as the President may by order determine. Translated into action, this power is utilised to make payment as if he is a daily wages, moaning thereby that he does not get, unlike an industrial worker, paid holiday. Apart from being a disincentive, the Law Commission thinks that the approach is insulting. How then do we go about it ?
3.22. The first suggestion in this behalf is that the retired Judges should be paid the salary drawn by sitting Judges without deducting pension or gratuity, miscalled equivalent of pension. By salary is meant pay and dearness allowance, if any, but would not include car allowance, sumptuary allowance, et al. The approach of the retiree, which this Law Commission has come across, revealed that the retiree has earned his pension. If he has to work during the fall of his life, there must be some incentive. This reservation can be removed by paying him full salary without deducting pension or pension equivalent to gratuity.
3.23. Let it not be said that something very revolutionary is suggested by recommending payment of full salary to a retired Judge without deducting pension or pension equivalent to gratuity. In the State of Gujarat, there are a number of posts manned by retired Judges, to wit, the Courts of Industrial Arbitration, Arbitrators and Registrar's nominees under the local Co-operative Societies' Act and other comparable posts.
Usually, the retired Judges are appointed to man these posts. Retired Judges are also appointed to various tribunals, such as, Sales Tax Tribunal, Revenue Tribunal, State Service Tribunal and other such comparable posts. They are all paid the last salary without deducting pension. Therefore, the Law Commission is of the opinion that the retired Judges who are called upon to render duty in public and national interest should be paid the salary drawn by sitting Judge as explained herein without deducting pension or pension equivalent to gratuity.
3.24. In order to elicit the reaction of the Chief Justices to the tentative thinking of the Law Commission, a letter was addressed to Chief Justice of each High Court and to the Chief Justice of India (See Appendix II and III) inviting them to critically respond to the tentative thinking of the High Court comprising the recommendations herein made after consulting their colleagues.
3.25. One of the Chief Justices, subject to his reservation, was in favour of this tentative thinking of the Law Commission. He said that it must be left to the Chief Justice of the High Court to decide who amongst the retired Judges should be recalled and which Judge should be allowed to continue in the absence of his successor being appointed beyond his date of retirement. Undoubtedly, Article 224A confers power on the Chief Justice of the High Court, with the previous consent of the President, to request a retired Judge to act as a Judge of the High Court.
Therefore, the intervention of the Chief Justice in selecting a retired Judge, to be recalled with a request to work as a Judge, is implicit in Article 224A. However, in the matter of continuance beyond the date of retirement till the incumbent steps in, the Law Commission is of the opinion that the Chief Justice should ordinarily consent to his continuance.
Once a provision is made that a retiring Judge will continue till his successor is appointed, it is hoped that, by itself would be an incentive to fill in the vacancies expeditiously and if simultaneously the new forum for recruiting Judges of the High Court and the Supreme Court, as recommended by the Law Commission, is set up, it can be legitimately hoped that the stopgap arrangement would be of a shorter duration and, therefore, the Chief Justice should not come in the way of the continuance of a retiring Judge till the successor is appointed. He may process the proposal expeditiously so that the continuance may not be for a long period.
3.26. Some of the Chief Justices who have responded to the letter dated January 20, 1988 (Appendix III) have by and large supported the thinking of the Law Commission. Others, it can be safely assumed that if they believed that the proposal is neither feasible nor workable nor in the interest of Judiciary, would have certainly responded setting out their views. In the absence of any specific responded it is safe to conclude that by and large their thinking is in accord with the proposal of the Law Commission.