Ad Hoc Judges of HC- Explained Pointwise
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Recently the Supreme Court suggested the temporary appointment of retired judges as ad hoc judges to address the increasing backlog of criminal cases in High Courts. This recommendation of SC, based on Article 224A of the Indian Constitution, while having its advantages comes with its own set of challenges.

Table of Content
What is the status of Judicial pendency in India?
What is the constitutional basis of appointment of Ad Hoc Judges?
What are the advantages of Retired Judges as Ad Hoc Judges?
What are the Challenges in the Appointment of Ad Hoc Judges?
Way Forward: “AD-HOC”

What is the status of Judicial pendency in India?

Case Backlogs: According to the National Judicial Data Grid (NJDG), over 50 million cases are currently pending across Indian courts, with the majority in the subordinate courts. 

Court Pendency of Cases
Supreme Court71411 Cases
High Court6 million Cases
Subordinate Courts41 million

Ad Hoc Judges

What is the constitutional basis of appointment of Ad Hoc Judges?

Article 224A Provision: Article 224A allows the Chief Justice of a High Court (CJHC) to request a retired HC judge to act as a judge, with the President’s consent.

Features:
a. Appointees enjoy the same powers and privileges as regular judges.
b. Both the retired judge and the President must agree to the appointment.
c. These judges are entitled to allowances as decided by the President.

Procedure:
Based on the 1998 Memorandum of Procedure (MOP):
a. The CJHC forwards the retired judge’s consent and appointment details to the state’s Chief minister.
b. The Chief Minister passes the recommendation to the Union Law Minister.
c. The Law Minister consults the Chief Justice of India (CJI) and forwards the recommendation to the Prime Minister.
d. The PM advises the President to approve or reject the proposal.

2021 SC Ruling: The Lok Prahari v. Union of India case mandated that such recommendations must be routed through the Supreme Court Collegium, comprising the CJI and two senior-most SC judges. It also laid out guidelines for initiating ad hoc appointments.

Criteria for Ad Hoc Judge Appointments

1. SC’s Guidelines (2021):

a. Ad hoc judges can only be considered when regular appointment recommendations cover less than 20% of vacancies.

b. Trigger Points:
i. HC vacancies exceed 20% of sanctioned strength.
ii. More than 10% of pending cases are older than 5 years.

c. Recommendations for ad hoc appointments should prioritize:
i. A panel of retired or soon-to-retire judges.
ii. A term of 2-3 years for 2-5 ad hoc judges per HC.
iii. Periodic review of appointments.

2. Concerns: The SC emphasized that Article 224A should not become an alternative to regular judge appointments but a supplementary measure.

3. Recommendations: Chief Justices should prepare a panel of retired and soon-to-retire judges for ad hoc appointments, subject to periodic review.

Historical Instances of Ad Hoc Judge Appointments

1. Rare Usage: Only three recorded instances under Article 224A:

a. Justice Suraj Bhan (Madhya Pradesh HC, 1972) – Appointed for one year to handle election petitions.
b. Justice P. Venugopal (Madras HC, 1982) – Appointed for one year, renewed in 1983.
c. Justice O. P. Srivastava (Allahabad HC, 2007) – Appointed for the Ayodhya title suits.

2. Dormancy: No ad hoc judges have been appointed since the SC’s 2021 ruling.

3. Key Concerns:
a. SC expressed concerns that Article 224A could delay regular judge appointments.
b. Emphasis on ensuring Article 224A is used only after initiating processes for regular appointments.

What are the advantages of Retired Judges as Ad Hoc Judges?

1. Utilizing Judicial Expertise: Retired judges bring decades of legal experience, enabling faster resolution of complex cases. For example- Justice O.P. Srivastava was appointed under Article 224A in 2007 to handle sensitive Ayodhya title suits.

2. Cost and Efficiency: Ad hoc judges provide an immediate, cost-effective solution compared to appointing and training new judges. For example- Justice P. Venugopal’s reappointment in the Madras High Court (1982) helped clear pending cases without straining resources.

3. Parliamentary Support: The 133rd report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice underscores the need for a comprehensive strategy to alleviate case backlogs, including the use of ad hoc judges.

4. Addressing the Judicial Pendency- 50 million cases are currently pending across Indian courts, with the majority in the subordinate courts. The appointment of ad hoc HC judges would aid in addressing the Judicial pendency.

What are the Challenges in the Appointment of Ad Hoc Judges?

1. Judicial Independence: Frequent reliance on ad hoc judges may undermine the judiciary’s independence. Retired judges may face perceived or actual pressure from the executive.

2. Resource Allocation: Ad hoc judges require allowances and resources, potentially straining already limited budgets. Funds allocated for retired judges may divert resources from upgrading court infrastructure.

3. Temporary Nature: Ad hoc judges lack long-term accountability and consistency. For example, a judge serving for 2–3 years may not follow through on long-running cases, leading to disruption.

4. Executive Overreach: Appointments require executive approval, raising concerns about political influence. Delays or biases in the appointment process could undermine judicial integrity.

5. Quality and Suitability: Identifying retired judges with the requisite expertise and physical capacity can be difficult. Cases involving technical matters, like intellectual property disputes, may require specialized knowledge unavailable among retired judges.

Way Forward: “AD-HOC”

A: Alignment: Ensure ad hoc appointments strictly adhere to constitutional principles and judicial standards.

DH: Defined Horizon: Clearly define the scope and duration of ad hoc appointments, avoiding their misuse or becoming a permanent feature.

O: Objectivity: Establish objective and transparent criteria for selecting and appointing ad hoc judges, minimizing potential for bias.

C: Constitutionalism: Safeguard the independence and impartiality of the judiciary, ensuring ad hoc appointments do not compromise these fundamental principles.

While ad hoc appointments can provide temporary relief to reduce pendency, addressing structural issues like judicial vacancies, case management, and systemic inefficiencies is essential for long-term judicial reform.


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