Ad hoc Judges in High Court, Appointment Process, Challenges and Concerns

Context: The Supreme Court’s recent decision to permit the appointment of retired judges as ad-hoc judges in High Courts to address case backlog—particularly criminal appeals—is a significant move.

Ad Hoc Judge Appointment Process – Article – 224 A

• The Chief Justice of a High Court (CJ) may request a retired judge to act as a High Court judge with the President’s consent.
• Appointees enjoy the same jurisdiction, powers and privileges as active judges but are not officially considered permanent judges.
• Both the retired judge and the President must consent to the appointment.

Procedure for Appointment – Defined in the 1998 Memorandum of Procedure (MOP):

• The process starts after the retired judge consents to the appointment.
• The CJ forwards the name and proposed tenure to the state’s Chief Minister (CM).
• The CM sends the recommendation to the Union Law Minister.
• The Union Law Minister consults the Chief Justice of India (CJI) and forwards the recommendation to the Prime Minister.
• The Prime Minister advises the President on whether to approve the appointment.

2021 SC Decision: Key Modifications

In the Lok Prahari v. Union of India (2021) case, the SC ruled

• Recommendations for ad hoc judges must go through the Supreme Court Collegium (CJI + 2 seniormost judges).
• The court also provided guidelines for when this appointment process can be initiated.

When Can Ad Hoc Judges Be Appointed ?

• Vacancy Criteria: Appointments under Article 224A should only occur if vacancies exceed 20% of the High Court’s sanctioned strength (excluding pending proposals for regular judge appointments).
• Trigger Point: If more than 10% of pending cases are over 5 years old.
• The process should be initiated only after regular appointment efforts have been made.
• Tenure and Numbers: Ad hoc judges should generally be appointed for 2-3 years. Two to five ad hoc judges can be appointed per High Court.
• Panel of Judges: Each Chief Justice must maintain a panel of retired or soon-to-retire judges for potential ad hoc appointments.

Arguments in Favor

• Immediate Relief for Case Backlog: With over 62 lakh pending cases in High Courts, additional judicial manpower can help expedite the resolution of long-pending criminal appeals.
• Precedent and Constitutional Backing: Article 224A of the Constitution provides for the appointment of ad-hoc judges, and the 2021 Lok Prahari v. Union of India case reaffirmed its validity.
• No Impact on Regular Appointments: Since ad-hoc judges do not compete for promotions or permanent judicial positions, their appointment does not interfere with the elevation of sitting High Court or district court judges.
• Minimal Political Sensitivity: As ad-hoc judges are unlikely to handle politically sensitive cases, government approval may not face significant resistance.
• Reduced Burden on Prisons: Expediting criminal appeals can help reduce overcrowding in jails by ensuring faster disposal of cases involving undertrial prisoners.

Challenges and Concerns

• Government Cooperation and Delays: The process of appointing ad-hoc judges requires executive approval, and past delays in judicial appointments suggest this could become a bottleneck.
• Judicial Infrastructure and Support Staff: Courts already face resource constraints. Ensuring adequate courtrooms, stenographers, and legal researchers for ad-hoc judges is crucial for their effectiveness.
• Attracting Qualified Retired Judges: Many retired judges prefer arbitration or private practice due to better financial incentives. Unless attractive perks are offered, getting competent judges to return may be challenging.
• Potential Procedural Hurdles: The Supreme Court previously found the appointment process cumbersome. Streamlining it—without unnecessary intelligence clearances—will be key to ensuring timely implementation.
• Judicial Independence Concerns: While ad-hoc judges serve for a fixed term, their past associations in the legal fraternity and potential return to private practice may raise concerns over impartiality.

Conclusion

The appointment of ad-hoc judges is a practical short-term measure to address judicial backlog, especially in criminal appeals. However, its success depends on swift government action, adequate infrastructure, and ensuring that qualified judges are willing to take up the role. In the long run, structural reforms in judicial appointments, case management, and digitalization are essential to sustainably address pendency.

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