Article 224A: The Forgotten Article - Legal Notes by Arvind Datar

The backlog of arrears in most High Courts continues to remain at alarming levels. The Allahabad, Bombay, Calcutta and Madras High Courts account for more than half the total backlog. The website of Bar and Bench shows that 40,60,709 cases were pending in all the High Courts as on 31.3.2009. And these four High Courts account for 20.4 lakh cases..Appointment of more judges is not the answer as increasing quantity without quality is usually counter-protective and also increases the appellate load. Further, the selection process is now mired in controversy with increasingly strident attacks on the working of the collegium. The new Government seems determined to demolish the collegium process and substitute it by a Judicial Appointment Commission. Thus, fate of the collegium system hangs in the balance and is likely to delay the appointment of judges to the High Courts. In this background, it is vitally necessary to consider implementation of Article 224-A of the Constitution. This Article has been, unfortunately, rarely used. The Article reads as follows:.224-A. Appointment of retired judges at sittings of High Courts.-Notwithstanding anything in this Chapter, 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 Court or of any other 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. Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do..This article can be used to appoint competent retired judges to continue to sit and act as judges of the High Court where they retired or as judges of other High Courts. For example, the Madras High Court has second appeals which are pending over 20 years. The status of first appeals is no different. It would be extremely useful if retired judges of the High Courts are requested to continue to sit and dispose off such pending appeals..Similarly, the type of arrears varies from court to court. The Allahabad High Court may have a huge backlog of criminal cases whereas the Bombay High Court may have a huge backlog of tax appeals. Therefore, retired judges of other High Courts, well versed in tax laws, can be appointed to the Bombay High Court under Article 224-A to clear pending tax cases. The specialized knowledge and expertise of judges can thus be usefully employed in clearing the backlog of various types of cases in several High Courts..In Krishan Gopal v. Sri Prakashchandra AIR 1974 SC 209, the history of Article 224-A has been pointed out in the following words:.“The language of Article 224A, but for the difference in the marginal note, is similar to that employed in Article 128 which relates to the attendance of retired judges at the sittings of the Supreme Court Indeed, Article 224A was a part of the Constitution as originally framed. It was then numbered as Article 224. The language of the article was identical but its marginal note at that time read as “Attendance of Retired Judges at Sittings of High Court”. Article 224A was inserted by the Constitution (Fifteenth Amendment) Act, 1962 and the marginal note of the article since then is “Appointment of Retired Judges at Sittings of the High Court”. Both Articles 128 and 224A have been modelled on Section 8 of the Supreme Court of Judicature (Consolidation) Act, 1925 which relates to the Supreme Court of Judicature in England. According to Section 8 of the English Act, the Lord Chancellor may at any time, subject to the provisions of this section, request any person who has held the office of the judge of the Court of Appeal or of a judge of the High Court to sit and act as a judge of the Court of Appeal, and every such person so requested shall, while so sitting and acting have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a judge of the Court of Appeal : Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act as a judge of the Court of Appeal unless he consents so to do”..Apart from the above, the Gujarat High Court in Ajit D. Padival v Union of India (1988) 1 GLR 477 has pointed out that Article 224-A was not implemented because of the convention that a Chief Justice could not appoint retired judges till all the vacancies were filled up. However, Article 224-A does not contain any stipulation that retired judges can only be appointed after all the vacancies are filled up. At a time when there are numerous vacancies in the High Courts and there is an urgent need for early disposal of cases, there is no reason why Article 224-A cannot be applied to appoint retired judges of proven competence and specialized knowledge..There is an urgent need to implement Article 224-A so that such retired judges continue to hear and dispose cases. Most judges are physically fit and mentally alert at the age of 62 and can easily continue for at least another five years. If they can function as Chairpersons or Members of Tribunals, they can equally act as judges of High Courts..Article 224-A is an important but forgotten article. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963 but has remained in virtual hibernation over the last fifty years. It is time that is brought back to life at the earliest. There is also a strong case to argue that the appointment of retired judges under Article 224A does not require the sanction of the collegium. The proposal is by the Chief Justice of the High Court and the President has to give his consent..It is hoped that at least a beginning can be made in a few High Courts to implement Article 224-A. There is vast pool of extremely competent and talented retired judges and the expertise they have acquired should not be wasted..Arvind Datar is a practising Senior Advocate in the Supreme Court of India.