Why in news?

Recently, the Supreme Court proposed appointing retired judges on an ad hoc basis to address the backlog of criminal cases in High Courts. The Court also suggested revisiting its 2021 decision that restricted ad hoc appointments to specific situations.

Article 224A of the Indian Constitution permits the Chief Justice of a High Court to request retired judges to resume duties with the President's approval.

Although rarely invoked, this provision involves a detailed appointment process, previously clarified by the SC.

What’s in today’s article?

• Appointment of Ad Hoc Judges
• Conditions for Initiating Appointment Process
• Past Appointments of Ad Hoc Judges

Appointment of Ad Hoc Judges

• Article 224A of the Indian Constitution allows the Chief Justice of a High Court to request retired judges to act as ad hoc judges, with the President's prior consent.
• Power and privileges of the ad hoc judges
  • These judges have full jurisdiction, powers, and privileges but are not considered permanent judges.
  • Both the retired judge and the President must consent to the appointment.
• Procedure for Appointment
  • The 1998 Memorandum of Procedure (MOP) outlines the detailed process for appointing ad hoc judges.
  • After the retired judge consents, the Chief Justice forwards the name and appointment details to the state's Chief Minister.
  • The Chief Minister then submits the recommendation to the Union Law Minister, who consults the Chief Justice of India (CJI).
  • The CJI's advice is forwarded to the Prime Minister, who advises the President.
• Supreme Court’s Ruling on Appointment Process
  • In the case of Lok Prahari Through Its General Secretary S.N. Shukla IAS (Retd.) v. Union of India (2021), the Supreme Court clarified that the recommendation for ad hoc judge appointments must be routed through the Supreme Court collegium, consisting of the CJI and two senior-most judges.
  • The court also established guidelines for initiating this appointment process.
• Criteria for Appointment of Ad Hoc Judges
  • The Supreme Court in the Lok Prahari case addressed the issue of High Court vacancies and the mounting backlog of cases.
  • The Court acknowledged that ad hoc judges could help tackle these issues, especially given the significant vacancies in High Courts (around 40%).
  • However, it set clear guidelines for when ad hoc judges can be appointed.

Conditions for Initiating Appointment Process

• The Court ruled that ad hoc judges can only be appointed if recommendations for filling less than 20% of the vacancies have not been made.
• This decision aims to ensure that Article 224A is invoked only after the process for regular judge appointments has been initiated and is pending.
• Trigger Points for Appointing Ad Hoc Judges
  • Ad hoc judge appointments can only be considered if:
    • The High Court has vacancies of more than 20% of its sanctioned strength (excluding proposals for appointment).
    • More than 10% of the pending cases are over 5 years old.
• Recommendations for Appointment
  • The Court recommended that each Chief Justice should maintain a panel of retired or soon-to-retire judges for potential ad hoc appointments.
  • These judges should be appointed for 2-3 years, with 2-5 ad hoc judges per High Court.
  • The appointment process should be subject to periodic reviews.

Past Appointments of Ad Hoc Judges

• The Supreme Court has noted only three recorded instances of ad hoc judges being appointed under Article 224A, deeming it a "dormant provision."
• These instances include:
  • Justice Suraj Bhan (1972) - Appointed to the Madhya Pradesh High Court for one year to hear election petitions.
  • Justice P. Venugopal (1982) - Appointed to the Madras High Court, with his term renewed in 1983 for another year.
  • Justice O.P. Srivastava (2007) - Appointed to the Allahabad High Court to hear the Ayodhya title suits.
• Since the 2021 Supreme Court decision, there have been no further recorded appointments of ad hoc judges.