High Courts can bring back retired judges if faced with 20% staff shortage, rules Supreme Court

In April 2021, the Supreme Court issued directions allowing the appointment of ad hoc judges under Article 224 of the Constitution “to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts.”

Article 224A deals with the appointment of retired Judges at sittings of High Courts. “The Chief Justice of a High Court for any State, may 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, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court,” it says.

The April 2021 order said the trigger for recourse to Article 224A would not arise only in case the vacancies exceed 20 per cent. It had also said that “for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.”

On Thursday, the SC bench ordered that “each High Court may appoint ad hoc judges by taking recourse to Article 224A for appointment of ad hoc judges between two to five in number but not exceeding 10 per cent of the sanctioned strength.” Accordingly, it said that its directions in paragraphs 43, 54 and 55 of the April 2021 judgement, which spoke about the 20 per cent vacancy requirement, be kept in abeyance.

The April 2021 judgement also allowed the HCs to constitute Division Benches comprising only ad hoc judges “because these are old cases which need to be taken up by them”. Thursday, however, the SC said that “the ad hoc judges will sit in a bench presided over by a sitting judge of the High Court and decide pending criminal appeals.”

The bench also made it clear that the Memorandum of Procedure which lays down a procedure for appointment under Article 224A will be applied.