Report No. 188

Resort to appointments under article 224A of the Constitution necessary.

Under article 224A, the Chief Justice of the High Court with the previous consent of the President, appoint from among retired Judges of the same or other High Courts, to function as Judges of the High Court. These Judges appointed under article 224A of the Constitution can dispose of commercial cases along with other regular Judges of the High Court. Once the arrears have come down to a tolerable level, the High Court may consider whether it will be able to manage with its regular cadre of Judges. In our view, the Chief Justice must ensure that whatever be the number of retirements in his High Court, the number of Judges who are required to be on the Commercial Division is maintained throughout.

We do not deny that other subject jurisdictions in the High Court too require Judges, e.g. for criminal work or writ jurisdiction and so on. But in a total of more than 600 Judges in the High Courts in the country, the fact remains that, at any given point of time, there are always more than hundred or hundred and fifty vacancies. It is quintessential that Chief Justices should send recommendations six months in advance of a vacancy falling so that delay in disposal of cases may not arise on account of non-filling of vacancies. With the existing depleted strength of Judges, the huge backlog in most High Courts cannot be cleared unless such delays in sending recommendations are eliminated.

There was some thinking that when regular or additional vacancies are available in the High Court, the Chief Justice of the High Court should not normally resort to appointments under article 224A of the Constitution. But, things have changed. Speedy disposal of commercial cases is today as important as speedy disposal of a criminal appeals. The Commission recommends that in the interests of clearing arrears in the High Courts in various types of cases including criminal matters, a combination of regular newly appointed High Court Judges from the Bar and subordinate judiciary on the one hand and appointments under article 224A on the other, is the grave need of the hour.