The Acting judges are provisional judges appointed for a short tenure and assigned with the powers and functions of a permanent judge. The High Court Judges (Conditions of Service) Act, 1954 defines the term ‘acting judge’ as an individual appointed under Art.224 of the Constitution to perform the functions of a judge. The acting judge must have the same qualifications as that of a permanent judge. The main reason for the appointment of acting judge is the excess labor of the judiciary and the non availability of as many permanent judges as required. Even though the acting judges are appointed for a short duration, they can be reappointed if necessary.
The Constitution entrusts the President to appoint additional or temporary judges under Article 224. The President appoints the acting judge by warrant as of other judges. An addition of judges can be made in the High Courts if there is enhanced business or work, by appointing eligible persons as judges, but such appointment shall be for two years and not more. An added number of judges can be appointed by the President, if the office of the Chief Justice of High Court is vacant. A retired person can also be appointed as an acting judge by the Chief Justice of such High Court with the prior permission of the President. The temporary judge can hold his post till the permanent judge continues his duties.
In the Supreme Court, a qualified person can be appointed by the President as the acting Chief Justice if the office of the Chief Justice remains unfilled and he cannot execute his responsibilities. An additional judge and an acting judge enjoy similar authority and privileges under the Constitution.
The Acting Judges Act was passed during the British rule in India in 1867. The Act empowers the Governor General of India to appoint certain additional judicial officers if necessary. The main purpose of the Act was to remove uncertainty regarding appointment of temporary judges. The Act grants exclusive power on the Central and State Government to appoint judges as acting judge, but such a person appointed shall be qualified to be appointed as a permanent judge. The term of office shall be determined by the Central or State Government. The acting judge appointed as such shall have identical powers and duties of a permanent judge.
The applicability of the Act has been extended to Scheduled Districts as provided by the Scheduled Districts Act of 1874. The Act of 1867 was in reality intended for appointment of temporary judges in the inferior civil courts. But the Civil Courts Act passed by different states has included provisions for the appointment of acting judges in case of necessity. Therefore the 148th Law Commission of India recommended repealing the Acting Judges Act, 1867 during its endeavor to repeal the pre-1947 Central legislation. Hence the Act was repealed accordingly.
But the appointment of Acting Judges is not free from criticism. This is due to the fact that persons eligible to be appointed as permanent judges are appointed as temporary judges and acting judges are appointed in case of local emergency. The only approach to overcome the complexity is to standardize the legislation regarding the appointment of acting judges. The Act should impose restrictions on the appointment of temporary judges to the inevitable circumstances like ill health of a permanent judge, nonappearance of a judge due to convincing reasons; appointment is necessitated for the apposite functioning of the judiciary etc.
For this reason, the Parliament should take initiative for enacting a consistent legislation for governing the appointment of acting judges in the judiciary. Such legislation should include a uniform standard concerning the qualification, age, tenure and reasons for appointing a temporary judge.