Appointment of Retired High Court Judges on an Ad Hoc Basis
The News
Recently, the Supreme Court of India suggested the temporary appointment of retired judges on an ad hoc basis to address the mounting backlog of criminal cases in various High Courts. This decision aims to alleviate the strain on the judiciary caused by prolonged vacancies and increasing pendency of cases.
The suggestion by the apex court revisits Article 224A of the Indian Constitution, which provides for the appointment of retired judges to High Courts as needed, with the President’s consent. Although rarely invoked, the provision offers a mechanism to leverage the experience of retired judges to tackle judicial inefficiencies.
What Is Article 224A?
Article 224A of the Indian Constitution, titled “Appointment of retired Judges at sittings of High Courts”, empowers the Chief Justice of a High Court to request the services of retired judges. This is subject to:
- Consent of the retired judge, and
- Approval of the President of India.
Such judges are granted allowances as decided by the President’s orders and enjoy the same powers, jurisdiction, and privileges as regular High Court judges, except they are not officially deemed as permanent judges.
The Appointment Procedure
The detailed procedure for the appointment of ad hoc judges is outlined in the 1998 Memorandum of Procedure (MoP), developed after the collegium system for judicial appointments was introduced. Here's how the process works:
- Consent of the Retired Judge: The Chief Justice of the High Court first secures the retired judge's willingness to serve.
- Recommendation by the Chief Justice: Details of the proposed appointment, including duration, are forwarded to the state Chief Minister.
- Role of the State Government: The Chief Minister recommends the proposal to the Union Law Minister.
- Consultation with the Supreme Court: The Union Law Minister consults the Chief Justice of India (CJI) and forwards the recommendation, along with the CJI’s advice, to the Prime Minister.
- Approval by the President: The Prime Minister advises the President, who makes the final decision.
However, the 2021 Supreme Court decision in *Lok Prahari Through Its *General Secretary S.N. Shukla IAS (Retd.) v. Union of India added an important step: the recommendation must be routed through the Supreme Court collegium, which consists of the Chief Justice of India and the two seniormost judges of the Supreme Court.
When Can Ad Hoc Judges Be Appointed?
The Lok Prahari judgment laid out specific circumstances for appointing ad hoc judges under Article 224A:
- Vacancy Threshold: When more than 20% of sanctioned High Court judge positions are vacant (excluding pending recommendations for appointments).
- Case Backlog: If over 10% of the backlog of pending cases is more than five years old.
- Trigger Points: The process can only be initiated if the vacancies persist despite recommendations for regular appointments.
In addition, the court recommended:
- Creation of a panel of retired or soon-to-retire judges for ad hoc appointments.
- A term of 2-3 years for each appointed judge.
- Appointment of 2-5 ad hoc judges in a High Court, subject to periodic review.
Historical Instances of Ad Hoc Appointments
Despite the provision existing since the Constitution came into effect, Article 224A has been used sparingly. As of now, there have been only three recorded instances of such appointments:
- 1972: Justice Suraj Bhan was appointed to the Madhya Pradesh High Court for one year to handle election petitions.
- 1982-1983: Justice P. Venugopal served in the Madras High Court, with his tenure extended for an additional year.
- 2007: Justice O.P. Srivastava was appointed to the Allahabad High Court to hear the Ayodhya title suits.
Since the 2021 decision, no ad hoc appointments have been made, underlining the underutilization of this constitutional provision.
Challenges and the Supreme Court’s Concern
While the provision offers a temporary solution, the Supreme Court in 2021 emphasized that reliance on ad hoc appointments should not discourage regular appointments. Concerns include:
- Potential inaction in filling regular vacancies.
- Risk of overburdening retired judges who may lack the stamina for extended judicial work.
- Limited availability of qualified retired judges willing to serve on an ad hoc basis.
To mitigate these concerns, the court clarified that appointments under Article 224A should be a last resort and closely monitored.
Conclusion
The Supreme Court’s recent suggestion to invoke Article 224A reflects the judiciary’s proactive approach to addressing systemic issues such as case backlogs and vacancies in High Courts. By leveraging the expertise of retired judges, the judiciary hopes to deliver timely justice while awaiting systemic reforms to fill regular vacancies.
However, for this measure to succeed, it must complement ongoing efforts to streamline judicial appointments and reduce vacancies. Ad hoc appointments are not a substitute for permanent solutions, but they remain a vital tool in ensuring the wheels of justice keep turning.