Nine months after the Supreme Court’s approval, no High Court has recommended names for ad-hoc judges under Article 224A. The move aimed to ease India’s massive criminal case backlog remains stalled.
New Delhi: Almost nine months after the Supreme Court allowed the appointment of ad-hoc judges to help reduce the huge number of pending criminal cases, none of the 25 High Courts in India have yet sent any recommendations for such appointments.
According to officials aware of the process of appointing Supreme Court and High Court judges, till October 11, the Union Law Ministry has not received even a single name from any High Court collegium for the appointment of ad-hoc judges.
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The move to appoint ad-hoc judges came after the Supreme Court, on January 30, expressed serious concern over the pendency of more than 18 lakh criminal cases across the country.
The apex court then allowed the High Courts to appoint ad-hoc judges, but limited the number to not more than 10 per cent of each court’s total sanctioned strength.
The provision for appointing ad-hoc judges comes under Article 224A of the Constitution, which allows the appointment of retired judges as ad-hoc judges in High Courts to help deal with case backlogs.
As per the established procedure, each High Court collegium recommends names of candidates to be appointed as judges to the Department of Justice under the Ministry of Law.
The department then adds its comments and background details on the candidates before sending the list to the Supreme Court Collegium.
The Supreme Court Collegium reviews the list, makes its recommendations, and forwards them to the government for approval. After this process, the President of India issues the ‘warrant of appointment’ for the newly appointed judge.
For ad-hoc judges, the process will be similar, except that the President will not sign a warrant of appointment. However,
Officials said,
“the assent of the president will be sought for appointing ad-hoc judges,”
Officials also noted that except for one rare instance, there is no precedent of appointing retired judges as ad-hoc High Court judges.
Earlier, in a 2021 judgment on the appointment of ad-hoc judges, the Supreme Court had laid down several conditions to regulate the process.
In its verdict dated April 20, 2021, authored by former Chief Justice S.A. Bobde, the top court had directed that retired high court judges be appointed as ad-hoc ones for a period of two to three years to clear the backlogs.
In that judgment, the Court had specified certain limitations. One condition stated that ad-hoc judges could not be appointed if a High Court was functioning with at least 80 per cent of its sanctioned strength. Another condition required that ad-hoc judges be allowed to sit separately on benches to hear cases.
However, a later order by a special Supreme Court bench comprising then Chief Justice Sanjiv Khanna and Justices B.R. Gavai and Surya Kant relaxed some of these restrictions and temporarily suspended others.
Relaxing the conditions, the top court observed that
“the requirement that vacancies should not be more than 20 per cent of the sanctioned strength for the time being shall be kept in abeyance.”
The bench further directed that each High Court
“should keep the appointment to two to five ad-hoc judges, and not exceed 10 per cent of the total sanctioned strength.”
The Supreme Court also made it clear 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 rarely used Article 224A of the Constitution provides the legal basis for such appointments.
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.”
Despite these provisions and the Supreme Court’s clear directions, no High Court has yet acted on the initiative.
The delay highlights a continuing gap between judicial reforms approved at the top level and their implementation in the lower and state judiciary.
The Supreme Court’s effort to clear the massive backlog of criminal cases through ad-hoc appointments remains pending, awaiting the first move from any of the 25 High Court collegiums.
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