New Delhi: In a significant development, India’s high courts have yet to embrace the Supreme Court’s suggestion to appoint ad-hoc judges to clear the mounting backlog of criminal cases. Nearly nine months after the apex court greenlit the idea in January, not a single recommendation has been forwarded by any of the 25 high courts to the Union law ministry.
This lack of action comes as a concern, especially with over 18 lakh criminal cases pending resolution. The Supreme Court, in its January 30 order, had empowered high courts to appoint ad-hoc judges, capping their numbers at 10% of the court’s total sanctioned strength. This move was aimed at leveraging Article 224A of the Constitution, which permits the appointment of retired judges to assist high courts in managing their caseloads.
The established procedure for appointing high court judges involves recommendations from the respective high court collegiums to the Department of Justice in the law ministry, followed by a review and forwarding to the Supreme Court Collegium. While the process for ad-hoc judges is similar, it involves the President’s assent rather than a warrant of appointment. Officials have noted that, with one exception, there’s no significant precedent for appointing retired judges as ad-hoc high court judges.
The Supreme Court, in a judgment on April 20, 2021, had initially laid down certain conditions for appointing ad-hoc judges. However, a subsequent bench, including former Chief Justice Sanjiv Khanna, Justices B.R. Gavai, and Surya Kant, relaxed some of these conditions. The verdict, authored by former Chief Justice S.A. Bobde, suggested appointing retired high court judges as ad-hoc judges for two to three-year terms to clear case backlogs. Initially, conditions stipulated that ad-hoc judges couldn’t be appointed if a high court was operating at 80% of its sanctioned strength, and they could work separately from benches. These conditions were later relaxed, with the 20% vacancy requirement being kept in abeyance.
The Supreme Court had also recommended that each high court appoint between two to five ad-hoc judges, ensuring the total did not exceed 10% of the sanctioned strength. These ad-hoc judges were intended to sit on benches, presided over by a sitting judge, to specifically address pending criminal appeals. Article 224A, rarely invoked, facilitates such appointments with the President’s prior consent.