Appointment of Ad Hoc Judges of High Court Introduction

• The Supreme Court of India has recently suggested the temporary appointment of retired judges as ad hoc judges to tackle the growing backlog of criminal cases in High Courts. 
• This proposal, based on Article 224A of the Indian Constitution, presents a potential solution while also posing challenges.
• Over 50 million cases are pending across Indian courts, with subordinate courts bearing the majority of this burden, as per the National Judicial Data Grid (NJDG).
•  National Judicial Data Grid figures show a record high of 71411 cases pending cases in Supreme Court, 6 million cases pending in High Court and 41 million pending in Subordinate Courts of India. 

Constitutional Basis for the Appointment of Ad Hoc Judges:

• Article 224A Provision: Article 224A empowers the Chief Justice of a High Court (CJHC) to request a retired High Court judge to serve temporarily as a judge, subject to the President’s approval.
• Key Features:
  • Appointees have the same powers and privileges as regular judges.
  • Consent from both the retired judge and the President is mandatory.
  • Allowances for ad hoc judges are determined by the President.
• Procedure (Based on the 1998 Memorandum of Procedure):
  • The CJHC secures the retired judge’s consent and forwards the recommendation to the state’s Chief Minister.
  • The Chief Minister sends the proposal to the Union Law Minister.
  • The Law Minister consults the Chief Justice of India (CJI) and forwards the recommendation to the Prime Minister.
  • The Prime Minister advises the President regarding approval or rejection of the proposal.
• 2021 Supreme Court Ruling (Lok Prahari v. Union of India): This judgment required that recommendations for ad hoc judges go through the Supreme Court Collegium, comprising the CJI and the two senior-most Supreme Court judges. It also laid down detailed guidelines for initiating such appointments.

Criteria for Ad Hoc Judge Appointments of High Court:

• Supreme Court Guidelines (2021): Ad hoc judges may be considered only when recommendations for regular appointments address less than 20% of vacancies.
• Trigger Points for Appointing Ad Hoc Judges: 
  • High Court vacancies exceed 20% of sanctioned strength.
  • More than 10% of pending cases are older than five years.
• Recommendations for Appointment:
  • Conduct regular reviews of appointments.
  • Prioritize a panel of retired or soon-to-retire judges.
  • Appoint 2-5 ad hoc judges per High Court for terms of 2-3 years.
• Concerns: Article 224A is intended to supplement regular appointments and must not replace them.
• Recommendations: Chief Justices should maintain a panel of retired and soon-to-retire judges for ad hoc appointments, with periodic reviews to ensure effectiveness.

Historical Instances of Ad Hoc Judge Appointments:

• Rare Usage: There have been only three recorded instances under Article 224A:
  • Justice Suraj Bhan (Madhya Pradesh High Court, 1972) – Appointed for one year to handle election petitions.
  • Justice P. Venugopal (Madras High Court, 1982) – Appointed for one year and reappointed in 1983.
  • Justice O. P. Srivastava (Allahabad High Court, 2007) – Appointed for the Ayodhya title suits.
• Dormancy: No ad hoc judges have been appointed since the 2021 Supreme Court ruling.
• Key Concerns of Supreme Court:
  • The Supreme Court has warned that frequent use of Article 224A could delay regular appointments.
  • The provision should only be invoked after initiating regular appointment processes.

Advantages of Appointing Retired Judges as Ad Hoc Judges of High Court:

• Cost-Effectiveness: Ad hoc judges provide a more economical alternative compared to recruiting and training new judges. Justice P. Venugopal’s reappointment in the Madras High Court (1982) demonstrated this efficiency.
• Utilizing Judicial Expertise: Retired judges bring valuable experience, enabling quicker resolution of complex cases. For example, Justice O. P. Srivastava’s appointment in 2007 expedited the Ayodhya title suits.
• Addressing Pendency: With over 50 million pending cases, ad hoc High Court judges can significantly alleviate the burden.
• Parliamentary Endorsement: The 133rd report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice highlighted the necessity of ad hoc appointments to reduce case backlogs.

Challenges in the Appointment of Ad Hoc Judges:

• Resource Allocation: Allocating allowances and resources for ad hoc judges could strain limited budgets, diverting funds from essential judicial infrastructure upgrades.
• Judicial Independence: Over-reliance on ad hoc judges could undermine judicial independence, as retired judges may face actual or perceived executive influence.
• Executive Overreach: The requirement for executive approval raises concerns about political influence or delays in appointments.
• Quality and Suitability: Identifying retired judges with the required expertise and willingness to serve can be challenging, particularly for technical cases like intellectual property disputes.
• Temporary Nature: Short tenures (2-3 years) lack long-term accountability and may disrupt continuity in handling long-pending cases.

Way Forward

• Defined Scope: Clearly outline the scope and duration of ad hoc appointments to prevent over-reliance or misuse.
• Strict Adherence: Ensure that ad hoc appointments strictly align with constitutional principles and judicial standards. 
• Transparent Criteria: Develop objective, transparent criteria for selecting ad hoc judges to minimize bias.
• Maintain Independence: Safeguard judicial independence and impartiality, ensuring that ad hoc appointments do not compromise these core values.