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Constitutional Law

Ad hoc Judges in High Court

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 24-Jan-2025

Source: The Indian Express 

Introduction 

The Supreme Court suggested modifying the 2021 decision of Lok Prahari Through it’s General Secretary SN Shukla IAS (retd.) v. Union of India which provided that ad hoc judges can be appointed only in certain situations. 

Who are Ad Hoc Judges?

  • Article 224A of the Constitution of India, 1950 (COI) provides for appointment of retired Judges at sittings of High Court. 
  • Provision for Appointment: 
    • Allows the Chief Justice of a High Court to request a retired Judge to act as a Judge of that High Court. 
    • The appointment requires the prior consent of the President of India. 
  • Eligibility: 
    • The appointee must be someone who has previously held the office of a Judge in the same or any other High Court. 
  • Powers and Privileges: 
    • The retired Judge has the same jurisdiction, powers, and privileges as a Judge of that High Court during their tenure. 
    • However, they are not "deemed" to be a permanent Judge of the High Court. 
  • Allowances: 
    • The appointee is entitled to allowances determined by an order from the President. 
  • Dual Consent Required: 
    • Both the retired Judge and the President of India must consent to the appointment.

What is Memorandum of Procedure for Appointing Ad Hoc Judges?  

  • The detailed procedure for appointment of ad hoc judges can be found in the 1998 Memorandum of Procedure (MOP) for appointment of High Court judges. 
  • The appointment process under MOP is: 
    • After a retired Judge consents, the Chief Justice forwards their name and appointment duration to the state Chief Minister. 
    • The Chief Minister sends the recommendation to the Union Law Minister. 
    • The Law Minister consults the Chief Justice of India (CJI) before forwarding the recommendation and advice to the Prime Minister. 
    • The Prime Minister advises the President on granting approval. 
  • In the case of Lok Prahari Through it’s General Secretary SN Shukla IAS (retd.) v. Union of India (2021) the Court held that the appointment should has to be routed through the collegium of Supreme Court. 
  • This collegium includes the Chief Justice of India and the two seniormost judges of the Supreme Court. 
  • The Court also outlined in this judgment when the appointment process can be initiated ensuring proper checks and balances.

When can Ad Hoc Judges be appointed?

  • The Supreme Court in the case of Lok Prahari Through it’s General Secretary SN Shukla IAS (retd.) v. Union of India (2021) addressed pending cases and High Court (HC) vacancies, which were at nearly 40%. 
  • The Law Commission reports (1979, 1988, 2003) suggested using retired judges temporarily to address the backlog. 
  • The Supreme Court has acknowledged the utility of Article 224A but warned that it could lead to delays in regular judicial appointments. 
  • The judgment laid down the conditions for invoking Article 224A. It provided that ad hoc judges can only be appointed if: 
    • Vacancies exceed 20% of the sanctioned strength (excluding pending proposals). 
    • More than 10% of backlog cases are over 5 years old. 
  • The Court highlighted that Article 224A should only be used after initiating the process for regular appointments. 
  • The Court made the following recommendations by the Supreme Court: 
    • Each HC Chief Justice should create a panel of retired or soon-to-retire judges for potential ad hoc appointments. 
    • Appointments should generally last 2-3 years, with 2-5 ad hoc judges per HC. 
    • Periodic reviews of these measures should be conducted. 

What are the Instances where Ad Hoc Judges have Been Appointed in the Past? 

  • It was noted by the Supreme Court in 2021 that there have been only three recorded instances of ad hoc judges appointed under Article 224A: 
    • Justice Suraj Bhan appointed to the Madhya Pradesh High Court in 1972. 
    • Justice P. Venugopal appointed to the Madras High Court in 1982. 
    • Justice OP Srivastava appointed to Allahabad High Court in 2007. 
  • There are no instances of ad hoc judges being appointed apart from the above.

Conclusion

The provision for appointment of ad hoc judges is provided for under Article 224A of the COI. The appointment in this post can reduce the problem of backlog of cases. In the past there have been only three instances where ad hoc judges have been appointed.