The power to appoint an Additional Judge in a High Court is to be found in clause (1) of Article 224 which reads as follows:
If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified person to be Additional Judges of the Court for such period not exceeding two years as he may specify.
Term of Office of Additional Judge
Clause (3) of Article 224 provides inter alia that no person appointed as an Additional Judge shall hold office after attaining the age of 62 years. Therefore even if an Additional Judge has been appointed for a period of two years, he would cease to be a Judge if he attains the age of 62 years prior to the expiration of his term of two years.
It is clear from the provisions of clause (1) of Article 224 that the maximum period for which an Additional Judge can be appointed by the President is two years. This provision for appointment of a Judge for a period not exceeding two years seems to be peculiar to this country.
The Origin of Additional Judge System
There was no provision in the High Courts Act or the Charter Act, 1861 for appointment of an Additional Judge with a restricted tenure in a High Court. It was for the first time in the Government of India Act, 1915 that a provision was enacted for appointment of Additional Judges. Sub-section (2) of Section 101 provided that each High Court shall consist of the Chief Justice and as many other Judges as His Majesty may think fit to appoint and clause (i) of the proviso to that sub-section authorised the Governor- General-in-Council to appoint persons to act as additional Judges of any High Court for such period not exceeding two years as may be required.
The additional Judges were to have all the powers of a Judge of the High Court appointed by His Majesty. The Government of India Act, 1915 was replaced by the Government of India Act, 1935 and Section 220 of that Act provided that every High Court shall consist of a Chief Justice and such other Judges as His Majesty may from time to time deem it necessary to appoint and there was a proviso to this section which said that the Judges so appointed together with any Additional Judges appointed by the Governor-General shall at no time exceed in number such maximum number as the Governor-General may by order fix in relation to that Court.
Section 222, sub-section (3) provided for appointment of Additional Judges in these terms:
222. (3) If by reason of any temporary increase in the business of any High Court or by reason of arrears of work in any such Court it appears to the Governor-General that the number of the Judges of the Court should be for the time being increased, the Governor-General (in his discretion) may, subject to the foregoing provisions of this chapter with respect to the maximum number of Judges, appoint persons duly qualified for appointment as Judges to be Additional Judges of the Court for such period not exceeding two years as he may specify.
Article 199 of the Draft Constitution
The system of appointment of Additional Judges was therefore in vogue when the Constituent Assembly met to frame the Constitution. Article 199 of the Draft Constitution was almost in the same terms as sub-section (3) of Section 222 of the Government of India Act, 1935. There was also Article 198 in the Draft Constitution which in clause (1) provided for appointment of an acting Chief Justice and in clause (2) for appointment of an acting Judge.
The provision for appointment of an acting Judge made in clause (2) of Article 198 was that when the office of any Judge of a High Court is vacant or when any such Judge is appointed to act temporarily as a Chief Justice or is unable to perform the duties of his office by reason of absence or otherwise, the President may appoint a person duly qualified for appointment as a Judge to act as a Judge of that Court. The acting Judge contemplated by this clause of Article 198 was therefore clearly a temporary Judge.
Now when Articles 198 and 199 in the Draft Constitution came to be considered in the Constituent Assembly, a number of representations were received suggesting that both these articles should be deleted from the Constitution. It was felt by many that the practice of appointing acting or Additional Judges was pernicious and it should be done away with.
Tej Bahadur Sapru expressed his firm opposition to this practice of appointing acting or Additional Judges in the course of his speech in the Constituent Assembly. He said, decrying this practice in no uncertain terms:
“Additional Judges, under the old Constitution were appointed by the Governor-General for a period not exceeding two years. I do not know whether that condition has been reproduced in the proposed Constitution. This prohibition, however, does not apply to acting Judges or temporary Judges. I think the rule in future should be that any barrister or advocate, who accepts a seat on the Bench, shall be prohibited from resuming practice anywhere on retirement. I would not, however, apply this to temporary Judges taken from the services who hold a seat on the Bench for a few months, but I would add that the practice of appointing additional and temporary Judges should be definitely given up.
When I said at the Round Table Conference that there were acting, Additional and temporary Judges in India, some of the English lawyers not accustomed to Indian law felt rather surprised. I am also of the opinion that temporary or acting Judges do greater harm than permanent Judges, when after their seat on the Bench for a short period they revert to the Bar. A seat on the Bench gives them a pre-eminence over their colleagues and embarrasses the subordinate Judges who were at one time under their control and thus instead of their helping justice they act as a hindrance to free justice.
I have a very strong feeling in this matter and have during my long experience seen the evil effects of unchecked resumption of practice by barristers and advocates.”
There were also many others who expressed the same view. The Drafting Committee agreed with this view and expressed the opinion that “it would be better to delete Articles 198 and 199 relating to the appointment of temporary and Additional Judges, than to retain those articles without the ban on practice by persons who hold office as Additional or temporary Judges.”
The Drafting Committee took the view that “it was possible to discontinue the system of appointment of temporary and Additional Judges in the High Courts altogether by increasing, if necessary, the total number of permanent Judges of such Courts.”
The Constituent Assembly adopted the recommendation of the Drafting Committee to delete Articles 198(2) and 199 of the Draft Constitution providing for appointment of acting and Additional Judges in High Courts, with the result that when the Constitution came to be enacted, there was no provision in the Constitution for appointment of acting or Additional Judges.
It is clear from the discussions which took place in the Constituent Assembly that the Constitution-makers realised that an acting or Additional Judge would have to go back to the Bar on the expiration of his term of office and his tenure was of a strictly limited duration.
The Constitution- makers did not oppose the practice of appointing acting or Additional Judge on the ground that on the expiration of his term of office, an acting or Additional Judge would have to go back to the Bar, but their anxiety was that after going back to the Bar he would resume his practice and this might lead to abuses and it was this undesirable consequence which they wanted to prevent and that is why they deleted Articles 198(2) and 199 with a view to abolishing the practice of appointing acting or Additional Judges.
The underlying postulate of Articles 198(2) and 199 was that an acting or Additional Judges would come back to the Bar on the expiration of his term and start practice and this was intended to be stopped, but since it was not possible to debar an acting or Additional Judge from practising after he came back on the expiration of term, it was decided that the institution of acting and Additional Judges should be done away with.
There was no assumption by the Constitution-makers that an acting or Additional Judge would necessarily be made permanent and he would not have to go back to the Bar. On the contrary, going back to the Bar was clearly contemplated and hence Article 198(2) and 199 were deleted. The Constitution-makers also thought that it would be possible to discontinue the system of appointing acting and Additional Judges altogether without any detriment to early disposal of cases, if the total number of permanent Judges was sufficiently increased.
Introduction of Additional Judge System
But within six years of the coming into force of the Constitution it was found that the arrears in the High Courts were increasing and it was becoming difficult to bring them under control. There was Article 224 in the Constitution which provided that the Chief Justice of a High Court may at any time with the previous consent of the President request any retired Judge to sit and act as a Judge of the High Court, but this provision for recalling retired Judges to function on the Bench of a High Court for short periods was found to be neither adequate nor satisfactory and it was of no assistance in reducing the arrears of cases which were mounting up from year to year.
Parliament in its constituent capacity, therefore, decided to introduce two provisions;
–One for appointment of Additional Judges to clear off the arrears and
–The other for the appointment of acting Judges in temporary vacancies and with that end in view, enacted the Constitution (Seventh Amendment) Act, 1956.
This amending Act substituted the existing Article 224 by a new Article 224 which read as follows:
Appointment of Additional and acting Judges. –
(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be Additional Judges of the Court for such period not exceeding two years as he may specify.
(2) When any judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
(3) No person appointed as an Additional or acting Judge of a High Court shall hold office after attaining the age of sixty-two years. The existing Article 224 was added as new Article 224-A after the new Article 224. Clause (1) of Article 217 was also simultaneously amended with a view to making provision in regard to an acting or Additional Judge.
When can Additional Judges may be appointed?
The power to appoint an Additional Judge cannot therefore be exercised by the President unless there is either temporary increase in the business of the High Court or there is accumulation of arrears of work in the High Court and even when one of these two conditions exists, it is necessary that the President must be further satisfied that it is necessary to make a temporary increase in the number of Judges of that High Court. The words “for the time being” clearly indicate that the increase in the number of judges which the President may make by appointing Additional Judges would be temporary with a view to dealing with the temporary increase in the business of the High Court or the arrears of work in the High Court.
Article 224, clause (1) did not contemplate that the increase in the number of Judges should be for an indefinite duration. The object clearly was that Additional Judge should be appointed for a short period in order to dispose of the temporary increase in the business of the High Court and/or to clear off the arrears of pending cases. There is sufficient indication in clause (1) of Article 224 that the appointments of Additional Judges were intended to be of short duration and Parliament expected that sufficient number of Additional Judges would be appointed so as dispose of the temporary increase in the work or the arrears of pending cases within a period of two years or thereabouts.
That is why clause (1) of Article 224 provided that Additional Judges may be appointed for a period not exceeding two years. The underlying idea was that there should be an adequate strength of permanent Judges in each High Court to deal with its normal institutions and so far as the temporary increase in the work or the arrears of pending cases were concerned, Additional Judges appointed for a period not exceeding two years should assist in disposing of such work.
Reference
SP Gupta & others v. Union of India & another (1981)