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Synopsis

The Supreme Court has allowed each High Court to appoint retired judges as ad hoc judges, between 2 to 5 in number, but not exceeding 10% of the sanctioned strength, in a move to tackle the rising number of pendency of cases.

A bench of Chief Justice of India Sanjiv Khanna and Justices B R Gavai and Surya Kant suspended the stipulations made in April 20, 2021 judgment which stated that recourse to the appointment of ad-hoc judges under Article 224A of the Constitution should not be made unless 80% of the sanctioned strength is already either recommended or working.

"In other words, the requirement that the vacancies should not be more than 20% of the sanctioned strength, will be kept in abeyance for the time being," the bench said.

The court passed its order in a 2019 writ petition filed by NGO Lok Prahari, through its general secretary S N Shukla.

The bench noted in the judgment and order of April 20, 2021, this court referred to the unprecedented situation arising from the backlog of cases pending before the High Courts, and that any Constitution has to be dynamic as to sub-serve and endeavour to serve an existing problem.

Secondly, the judgment and order also stated that it would not be appropriate to close the proceedings, but a concept of continuing mandamus would be appropriate to work out the recourse to Article 224A of the Constitution of India, it said.

The court also pointed out as per the National Judicial Data Grid, recent data indicated that there has been an increase in pendency levels in almost all the High Courts.

Around 62 Lakhs cases are pending before the High Courts in India as on January 25, 2025, of which more than 18.20 Lakhs cases are criminal cases and more than 44 Lakh cases are civil cases.

The court thus said, "In the facts of the present case, each High Court may take recourse to Article 224A of the Constitution of India for the appointment of ad-hoc Judges between 2 to 5 in number, but not exceeding 10% of the sanctioned strength. The ad-hoc Judges will sit in a bench presided over by a sitting Judge of the High Court and decide pending criminal appeals."

The Memorandum of Procedure already in place, will be applied and resorted to for such appointments, the court clarified.

The court granted liberty to the parties to move an appropriate application, if necessary. "The bench will reassemble for further directions, if required and necessary," it said.

In its order, the bench kept conditions mentioned in the previous judgment in abeyance. Those paragraphs are 43, 50, 54, 55 and 61.

A bench headed by then CJI S A Bobde had said, "We would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation, we are of the view that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. We are thus of the view that there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to."

 

Case Title (Download Judgment): Lok Prahari Through Its General Secretary S N Shukla IAS (Retd) Vs Union of India