Report No. 148
3.4. The Acting Judges Act, 1867 (16 of 1867).-
We now come to the Acting Judges Act, 1867. The Governor-General of India-in-Council and the Local Governments were empowered by diverse enactments to appoint the judges of certain courts during the British rule in India. Doubts arose as to whether the power to appoint judges of the said courts also included the power to appoint persons to act temporarily as such judges.
The Acting Judges Act, 1867 was passed with a view to removing such doubts. The Act was initially in force in the Districts of Hazaribagh, Lohardaga (now in Ranchi district) and Manbhum and Paragnas Dhalbhum and the Kolhan in the district of Singbhum. By a notification under section 3(a) of the Scheduled Districts Act, 1874, the Act was subsequently extended to certain other provinces and territories of India.
Section 1 of the Act provides as follows:-
"In every case in which the Central Government or the State Government, as the case may be, has power under any Act or Regulation to appoint a judge of any court, such power shall be taken to include the power to appoint any persons capable of being appointed a permanent judge of such court, to act as a judge of the same court for such time as the Central Government or the State Government, as the case may be, shall direct. Every person so appointed to act temporarily as a judge of any such court shall have the powers, and perform the duties which he would have had and be liable to perform in case he has been duly appointed a permanent judge of the same court."
Acting Judges in High Courts are governed by Articles 224 and 224A of the Constitution of India in the post-independence era. Appointment of Judges to Subordinate Courts is governed by Articles 233 to 237 of the Constitution.
It would appear that the Acting Judges Act, 1867 was primarily meant for subordinate civil courts. Whatever may have been the need for the Act in 1867, the present position in the regard is that the Civil Courts Acts of most States have already made appropriate provision (wherever considered necessary) on the subject of filling up temporary vacancies in the judicial cadre. We give below an illustrative list of provisions of this nature, in Civil Courts Acts:-
|(1) Sections 13 & 28||Andhra Pradesh Civil Courts Act, 1972.|
|(2) Sections 3 & 16||Assam Frontier (Administration of Justice) Regulation, 1940.|
|(3) Sections 8, 10 & 36||Bengal Agra and Assam Civil Courts Act, 1867.|
|(4) Sections 35 to 37||Bombay Civil Courts Act, 1869.|
|(5) Sections 9, 19 & 28||Goa, Daman & Diu Courts Act, 1965.|
|(6) Sections 6 & 16||Kerala Civil Courts Act, 1957.|
|(7) Sections 18 & 19||Madhya Pradesh Civil Courts Act, 1958.|
|(8) Sections 3 & 7||Orissa Civil Courts Act, 1986.|
|(9) Sections 7, 21 & 28||Punjab Courts Act, 1918.|
|(10) Sections 3A, 4, 4A & 25||Tamil Nadu Civil Courts Act, 1973.|
|(11) Paragraph 27 to 39||Tripura (Courts) Order, 1950.|
In the circumstances, it seems proper to repeal the Acting Judges Act, 1867 and we recommend accordingly.