In a significant move to tackle pendency of criminal cases, the Supreme Court on Thursday allowed the high courts across the country to appoint retired HC judges on an ad-hoc basis, subject to conditions that they will only hear criminal appeals in a bench headed by a sitting judge.
The order by a special bench comprising chief justice of India (CJI) Sanjiv Khanna and justices BR Gavai and Surya Kant will allow chief justices of high courts to initiate recommending names of retired HC judges for appointment. Each HC should keep the appointment to two to five ad-hoc judges and not exceed 10% of the total sanctioned strength, the bench said.
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The bench modified and kept in abeyance certain conditions imposed by an earlier order of the top court. In its verdict on April 20, 2021, a three-judge bench headed by then CJI SA Bobde directed retired HC judges to be appointed as ad-hoc only ones for a period of two to three years. The ruling also put certain conditions, including that the ad-hoc judges could not be appointed if a HC worked with 80% of its sanctioned strength, and that ad-hoc judges could sit separately on benches to deal with cases.
Under Article 224A of the Constitution of India, the chief justice of a high court is entitled to urge retired judges to again assume the office, but the provision was rarely invoked — only thrice in the past. The 80% condition, however, prevented from appointing ad-hoc judges in several high courts such as the Allahabad high court, which currently has a working strength of 80 judges out of a sanctioned strength of 160.
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As on January 25, 2025, there are 1.82 million criminal cases and over 44,000 civil cases pending before the high courts, according to data from the National Judicial Data Grid (NJDG).
“Having regard to this situation (of pendency) we are inclined to keep the observations/conditions in paragraphs 54, 55 and 61 of judgment of April 20, 2021…in abeyance. In other words, the requirement that vacancies should not be more than 20 per cent of the sanctioned strength for the time being shall be kept in abeyance,” the top court said in its order on Thursday.
A request was made by an applicant in the matter to fix a timeline for appointing ad-hoc judges, but the bench refused to entertain the same.
“For the present, each high court may appoint ad hoc judges by taking recourse to Article 224A between 2 to 5 in number but not exceeding 10% of the sanctioned strength,” the bench ordered. “The ad hoc judge will sit in a bench presided over by a sitting judge of the high court and decide pending criminal appeals.”
Such ad-hoc appointments have been made on only three occasions in the past. In 1972, justice Suraj Bhan was appointed as ad-hoc judge in the Madhya Pradesh HC months after his retirement; justice P Venugopal in the Madras HC in 1982; and more recently justice OP Srivastava in the Allahabad HC in 2007.
On January 21, the apex court had mooted the idea of bringing retired HC judges on board to serve as “ad-hoc” judges in high courts faced with “acute” pendency of criminal appeals, with data showing a staggering 63,000 criminal appeals pending in the Allahabad HC alone.
Appearing for the Centre, attorney general R Venkataramani said: “The government is in consonance with what the court has proposed. We can move ahead. We can follow this protocol beginning with three high courts and as we go about it, we can see if any issues arise.”