Despite the Supreme Court’s approval nearly five months ago, High Courts across the country remain hesitant to appoint ad-hoc judges, delaying efforts to reduce the mounting backlog of criminal cases pending before them.
Despite the Supreme Court approving the concept nearly five months ago, high courts appear reluctant to appoint ad-hoc judges to address the backlog of criminal cases, as per information from the government.
Sources familiar with the procedure for appointing judges in the Supreme Court and high courts indicate that no high court collegiums have recommended the names of retired judges for ad-hoc appointments thus far.
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As of June 11, none of the 25 high courts in the country had submitted any proposals to the Union Law Ministry.
On January 30, the Supreme Court permitted high courts to appoint ad-hoc judges, limited to no more than 10 percent of the court’s total sanctioned strength, in light of a backlog exceeding 1.8 million criminal cases. Article 224A of the Constitution provides for the appointment of retired judges as ad-hoc judges in high courts to help reduce this backlog.
According to the established procedure, high court collegiums are responsible for sending recommendations or candidate names for high court judges to the Department of Justice in the law ministry.
The department then adds necessary details about the candidates before forwarding the information to the Supreme Court Collegium. The Supreme Court Collegium ultimately makes the final decision and recommends the appointments to the government, after which the president signs the ‘warrant of appointment’ for the new judges.
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The process for appointing ad-hoc judges follows the same steps, but a presidential signature is not required for their warrants of appointment, although the president’s assent is still necessary.
Officials have noted that there is little precedent for appointing retired judges as ad-hoc judges in high courts, with only one exception. A Supreme Court judgment from April 20, 2021, regarding ad-hoc judges included specific conditions for their appointment.
However, a special Supreme Court bench, including then Chief Justice Sanjiv Khanna, Justices B R Gavai (the current Chief Justice), and Surya Kant, later relaxed some of these conditions and put others on hold.
The verdict authored by former Chief Justice S A Bobde mandated that retired high court judges should be appointed as ad-hoc judges for a term of two to three years to help clear the backlog. One condition stated that ad-hoc judges could not be appointed if a high court was operating at 80 percent of its sanctioned strength, while another allowed them to sit separately on benches to handle cases.
In relaxing these conditions, the court decided to keep the requirement that vacancies not exceed 20 percent of the sanctioned strength in abeyance for the time being. It also stipulated that each high court should limit ad-hoc appointments to between two and five judges, ensuring they do not exceed 10 percent of the total sanctioned strength.
The apex court’s order stated,
“The ad-hoc judges will sit in a bench presided over by a sitting judge of the high court and decide pending criminal appeals,”
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Article 224A of the Constitution, which is rarely utilized, pertains to the appointment of ad-hoc judges in high courts.
It 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.”