Why Supreme Court suggested appointing retired High Court judges on ‘ad hoc’ basis

The SC on Tuesday also suggested modifying the top court’s 2021 SC decision, which held that ad hoc judge appointments could only be made in certain situations. We explain.

How is an ad hoc judge appointed?

Article 224A, titled “Appointment of retired Judges at sittings of High Courts”, states: “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”.

Such appointees are entitled to allowances as determined by the President’s order and have all the jurisdiction, powers and privileges of a Judge of that High Court. However, they cannot be “deemed” as such. Further, both the retired judge and the President of India are required to consent to the appointment.

The detailed procedure can be found in the 1998 Memorandum of Procedure (MOP) for the appointment of High Court judges, prepared following the creation of the collegium system for appointing judges.

The MOP states that after the retired judge has consented to the appointment, the Chief Justice must forward her name and details on the duration of the appointment to the state’s Chief Minister. The CM will pass this recommendation to the Union Law Minister, who will consult the Chief Justice of India before forwarding the recommendation and the CJI’s advice to the Prime Minister of India. The PM will advise the President on whether to give her approval.

However, in the case of Lok Prahari Through Its General Secretary S.N. Shukla IAS (Retd.) v. Union of India (2021), the Supreme Court held that this recommendation “has to be routed through the collegium of the Supreme Court”. This collegium includes the CJI and the two seniormost judges of the Supreme Court. The court also provided guidelines for when this appointment process can be initiated.

When can an ad hoc judge be appointed?

The SC, in Lok Prahari, was considering measures to address pending cases before the courts and the vacancies in posts for HC judges, stating that “A number of vacancies arising every year are barely filled in by fresh appointments”. At the time, the SC was faced with nearly 40% vacancies across all High Courts. The court also took note of Law Commission reports published in 1979, 1988, and 2003, which suggested that temporarily appointing retired judges who already have decades of experience is a viable solution to tackle the mounting backlog of cases.

Though the apex court agreed, it expressed concerns that Article 224A would encourage “inaction in making recommendations” for regular judge appointments. The court thus passed directions on when the appointment process under Article 224A could be initiated.

Most importantly, the court held ad hoc judges can only be appointed when recommendations have not been made for less than 20% of the vacancies, after considering both the number of active judges and pending proposals for judge appointments. This is so that Article 224A can be “resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.”

The court also held that there has to be a “Trigger Point” for appointing judges under Article 224A, such as if the HC has vacancies of more than 20% of the sanctioned strength (excluding any proposals for appointment) and if more than 10% of the backlog of pending cases is over 5 years.

It further recommended that each Chief Justice should create a “panel” of retired and soon-to-retire judges for possible ad hoc appointments. Such judges should generally be appointed for 2-3 years, with two to five ad hoc judges in a HC. The court also held that these directions should be subject to a “periodic review”.

When have ad hoc judges been appointed in the past?

In 2021, the SC noted there have only been three recorded instances of ad hoc judges being appointed under Article 224A, calling it a “dormant provision”. These include:

• The appointment of Justice Suraj Bhan to the Madhya Pradesh HC in 1972 for one year to hear election petitions;
• The appointment of Justice P. Venugopal to the Madras HC in 1982. His term was renewed for another year in August 1983;
• The appointment of Justice O P Srivastava to the Allahabad HC in 2007 to hear the Ayodhya title suits.

There are no recorded instances of ad-hoc judges being appointed since the 2021 decision.