• A Supreme Court bench, including Chief Justice Sanjiv Khanna, suggested the appointment of ad-hoc judges in High Courts to deal with the huge pendency of criminal appeals.

• The SC bench referred to the data on pendency of criminal cases in several High Courts and said in Allahabad High Court alone there were 63,000 criminal appeals pending.

• The CJI said in the Jharkhand High court the figure stood at 13,000, and similarly 20,000, 21,000, 8,000 and 21,000 criminal cases were pending in High Courts at Karnataka, Patna, Rajasthan and the Punjab and Haryana respectively.

• On April 20, 2021, the Supreme Court in a crucial verdict directed retired High Court judges to be appointed as ad-hoc judges for a period of two to three years to clear the backlog of cases.

Appointment Procedure

• Chapter V of Part VI of the Constitution of India commencing from Article 214 up to Article 231 relates to the High Courts in the states. Article 217 provides for the appointment and conditions of the office of a Judge of the High Court, wherein the current age of retirement is 62 years.

• Article 224A deals with the appointment of additional and acting judges. 

• The objective as set out in the Article is to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein.

• A Memorandum of Procedure (MoP) was prepared in 1998 for appointment of ad-hoc judges.

• Under Article 224A of the Constitution, the Chief Justice of a High Court 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 of that state. 

• Whenever, the necessity for such an appointment arises, the Chief Justice will after obtaining the consent of the person concerned, communicate to the Chief Minister of the state the name of the retired judge and the period for which he will be required to sit and act as judge of the High Court. 

• The Chief Minister will, after consultation with the Governor, forward his recommendation to the Union Minister of Law, Justice and Company Affairs. The Union Minister would then consult the Chief Justice of India in accordance with the prescribed procedure. 

• On receipt of CJI’s advice, the same would be put up to the Prime Minister, who will then advise the President as to the person to be appointed to it and act as a judge of the High Court. As soon as

the President gives his consent to the appointment, the Secretary to the government of India in the Department of Justice will inform the Chief Justice of the High Court and the Chief Minister and will issue the necessary notification in the Gazette of India.

• In its 2021 judgment, the Supreme Court laid down some general guidelines so that power conferred under the said provision is exercised in a transparent manner. 

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises:

a) If the vacancies are more than 20 per cent of the sanctioned strength.

b) The cases in a particular category are pending for over five years.

c) More than 10 per cent of the backlog of pending cases are over five years old.

d) The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.

e) Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

• The tenure for which an ad-hoc judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment is for a period between two to three years.

Importance of appointment of retired judges as ad-hoc judges

• The 124th report of the Law Commission delivered in 1988 dealt with the aspect that a fresh look was required for High Court arrears. 

• In that context, it has been recognised that retired judges have several decades of adjudicatory experience, and their talents could be utilised to dispose of mounting arrears. 

• On account of their experience, they would be quick in disposing cases and being unburdened with administrative or admission work, they could spend their entire time hearing old matters. 

• Thus, the appointment of retired judges as ad-hoc judges was seen as a part of a “multipronged attack” on arrears, and was strongly recommended.

• The 188th Report of the Law Commission of 2003 noted that it was

the need of the hour to make appointments under Article 224A of the Constitution for clearing arrears in the High Court in various types of cases, including criminal matters. The concern was to bring the arrears within manageable proportions.

• An advantage of appointing ad-hoc judges under Article 224A is that it provides for a ready-made pool of known judicial talent which can be relied upon to be competent, clean and efficient. 

• This can be an effective weapon to deal with the disposal of pending cases, more so in the context of inordinate delay in fresh judicial appointments.

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