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in

A permanent space for Temporary Judges in India

authored by Darryl Barretto

Our judicial system is under tremendous stress which is a fact known to all. As of
2011, there were about 3.2 crore cases pending in the High Courts and Lower Courts
in India[1]. One cause of concern is that there are relatively few number of judges
handling a huge number of cases in India. As per one estimate India has only 13
judges per million people[2]. This is low even from a developing country’s
perspective. It is about time that some radical solution be brought to improve this
backlog of cases.

One solution would be introducing the concept of “temporary judges”. A candidate

for being appointed as a temporary judge can be a selected from a pool of
designated senior advocates or advocates having a minimum amount of experience.
They can act as judges for the lower courts and would be paid fees for acting as
such. Once their terms as Judges are completed they can return to the Bar. The
benefits of having temporary Judges is that they can be an effective tool to reduce
the burden of regular Judges and would be a more cost effective solution than
appointing more regular Judges.

Such a system is already prevalent in other countries. For example in England,

there is a system of appointing barristers and solicitors as part-time Judges (known
as Recorders) for a period of 5 years. Their jurisdiction similar to that of a Circuit
Judge in England. On completion of their term they may either renew their
appointment as Recorders or return to the Bar.

This type of system can be introduced in India as well. In fact the concept of
temporary judges is not new to India. Article 224 (1) of the Constitution provides
that if it appears to the President that there is any temporary increase in the
business of a High Court or by reason of arrears of work therein, then the President
can appoint any qualified persons to be Additional Judges of the High Courts for
such period not exceeding two years. Although it must be seen that over the years
the practice has been that individuals are first appointed as Additional Judges of the
High Courts and later on been confirmed as Permanent Judges. In fact the Supreme
Court has in S.P. Gupta vs. Union of India [AIR 1982 (SC) 149] made the following
observation in regards to the current practice:

“37. But what happened in practice was that the true intendment and purpose of
clause (1) of Article 224 was never carried into effect. The Government did not
increase the strength of permanent Judges in different High Courts adequately so as
to be able to cope with the normal institutions. ... Of course, it was not only the
Government which was responsible for not increasing adequately the strength of
permanent Judges but the Chief Justices of many High Courts were also remiss in

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looking after the interests of their High Courts, inasmuch they too did not ask the
Government for increase in the strength of permanent Judges. ... The unfortunate
consequence was that the Additional Judgeship became a gateway for entering the
cadre of permanent Judges. Whenever a person was appointed as a Judge in a High
Court, he would be first appointed as an Additional Judge and only when a vacancy
occurred in the post of a permanent Judge, he would be confirmed as a permanent
Judge in that vacancy in accordance with the seniority amongst the Additional
Judges. The practice therefore grew up of a person being first appointed as an
Additional Judge and then being confirmed as a permanent Judge in the same High
Court."

Therefore the aforesaid observations made by the Supreme Court it would show
that the Constitution itself has made provisions for appointing Additional Judges
when the burden of judicial work is more for the regular Judges. If the Constitution
itself sanctions the appointing of Additional Judges to High Courts then introducing
the concept to lower courts should not be a big issue for the Government.

One question that may haunt many, is whether after a temporary Judge on
completion of his term, should be allowed to practice in the same Court where he
held the position of Judge and whether this would give him an undue advantage
during practice. Interestingly this question came before the Hon’ble Bombay High
Court in the case of Nitin Shankar Deshpande v. The President of India &
Ors. (2012 (4) ALL MR 883). The facts of the case was that, during the course of
their term of appointment as Additional Judges of the Bombay High Court, five
individuals had tendered their resignation and had reverted back to practice in the
same High Court. A Public Interest Litigation was filed praying for a writ
prohibiting these ex-additional Judges from practising in the High Court. The major
issue in the case was whether Article 200 of the Constitution which prohibits
‘Permanent judges’ of a High Court to practice in the same High court should also
apply to Additional Judges appointed to the High Court. After an elaborate
discussion of the provisions of the Constitution the division bench of the Bombay
High Court came to the conclusion that the restrictions applicable to Permanent
Judges of the High Court under Article 200 of the Constitution would not apply to
Additional Judges so appointed. The Division Bench of the Bombay High Court, in
respect to the argument that Additional Judges if allowed to practice in the same
High Court would result in inroads on the independence of the judiciary, observed
as follows:

“17. There is absolutely no merit in the contention that an Additional Judge who
upon reverting to the Bar commences practise would be placed in an unequal
position as compared to any other member of the Bar. Judges are vested with a
solemn obligation of rendering justice in accordance with law; justice which is
dispassionate and objective. If a person who is appointed as an Additional Judge
reverts to the Bar at the end of his tenure of office or earlier, that person assumes
the role of an Advocate before the Court. Every member of the Bar is entitled to the

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same treatment from the Bench and there is no basis in the apprehension that this
would not be the case if an Additional Judge, upon ceasing to hold office reverts to
the Bar. Judicial office is associated with the discharge of significant
responsibilities. Training as Judge and the conventions of the Bench are important
elements in the process of dispensing justice that is objective. Upon reverting to the
Bar, such a person has the same position as that of any other member of the Bar.”

The Bombay High Court in its above observations, has put aside the apprehensions
of undue advantage to temporary Judges, and of their independence. The
Government can take a cue from this decision and seriously consider introducing
the concept of temporary Judges in India.

[1] http://articles.timesofindia.indiatimes.com/2011-12-
20/india/30537308_1_subordinate-courts-pendency-crore-cases

[2] http://articles.economictimes.indiatimes.com/2013-05-
09/news/39144068_1_judges-high-courts-justice