In Lok Prahari vs. Union of India (2025), Supreme Court's 3-judge bench of Chief Justice of India Sanjiv Khanna and Justices B.R. Gavai, and Surya Kant modified the 74-page long judgement dated April 20, 2021, by a 3-judge bench of Chief Justice of India S. A. Bobde and Justices S. K. Kaul, and Surya Kant which had activated the dormant provision under Article 224A of the Constitution of India for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts in the face of vacancies of almost 40 per cent.
Chief Justice Khanna bench observed that wherever case pendency exceeds 10% of the sanctioned strength in a High Court, the proposal for appointing ad-hoc judges can be adopted. He clarified that the government would have the discretion to determine the required number of such judges, ensuring that their appointments do not exceed 10% of the total sanctioned strength of the respective High Court. The order reads: "We are inclined to keep in abeyance the observations in paragraphs 43, 54, and 55 of the order dated April 28, 2021, which required that ad-hoc judge appointments should not be made unless 80% of the sanctioned strength is already working or recommended," It underlined that the requirement that vacancies should not exceed 20% would also be kept in abeyance.
It directed that each High Court may appoint 2-5 ad-hoc judges, ensuring that the number does not exceed 10% of the sanctioned strength. These ad-hoc judges will be part of benches presided over by sitting High Court judges and will primarily handle pending criminal appeals.
Chapter V of Part VI of the Constitution of India commencing from Article 214 upto Article 231 relates to the High Courts in the States. Article 217 provides for the appointment and conditions of the office of a Judge of the High Court, wherein the current age of retirement is 62 years. We may say that broadly, it is amongst the youngest ages of retirement of judges of the apex Court of a state in comparison with other democracies of the world.
Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein. The appointment of an additional judge duly qualified to be the judge of a High Court has to be for a period not exceeding two years, or as the President may specify. The ground reality however, remains that while determining the strength of different High Courts, the practice that has been adopted is that about 25% of the strength consists of additional Judges.
Article 224A which reads:
"224A. Appointment of retired Judges at sittings of High Courts-Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State, may with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court: Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do."
This Article begins with a non-obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court, to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting, such a judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of the High Court judge; but for all other purposes shall not be deemed to be a High Court judge. The proviso stipulates that consent has to be obtained from the judge concerned.
The Court relied on the 5-judge decision in In Krishan Gopal vs. Shri Prakash Chandra & Ors (1974) wherein the Court ruled on the issue of whether a person sitting and acting as a Judge of the High Court under Article 224A of the Constitution has the jurisdiction to try an election petition under Section 80-A of the Representation of the People Act, 1951. Debate arose in the context of a judge of the Madhya Pradesh High Court who was sitting and acting as a judge of that Court under Article 224A of the Constitution, and his appointment was to last for a period of one year or till the disposal of elections petitions entrusted to him, whichever was earlier. In that context it was observed that if a person appointed under Article 224A of the Constitution was not considered to be a judge of the High Court for the purpose of jurisdiction, powers and privileges, the question of appointing such a person would never arise.
In Justice P Venugopal vs. Union of India and Ors. (2003), it was opined that an ad hoc judge does not become a part of the High Court. There is no question of computing his pension for the period he id appointed as an ad hoc judge.
In Union of India vs. Sankalchand Himatlal Sheth (1977), it was observed that the reason for insisting on consent was that a retired Judge cannot be compelled to work as an ad hoc judge against his consent. This is because he ceases to be a judge of the High Court on demitting office at the prescribed age and is not bound by the conditions of service.
According to National Judicial Data Grid (NJD), more than 62,000 cases are pending before High Courts as of January 25, 2025, including over 18 lakh criminal cases and more than 44,000 civil cases.
Regarding the Memorandum of Procedure (MoP) for such appointments, Chief Justice Khanna bench made it clear that the existing MoP would be followed. It kept paragraph 61 of the April 28, 2021 order in abeyance.
On January 21, 2025, the Court had acknowledged that the current stipulation requiring at least 80% of sanctioned judicial strength in High Courts to consider appointing ad hoc judges is impractical in states with high pendency. The bench proposed to modify the threshold to allow for ad hoc judges specifically to address criminal appeals. The bench recorded that Pana High Court has 21,000 appeals.
It observed: "We will have to therefore, partly modify or put in away certain Lok Prahari part, that untill and unless you have 80% of the sanction strength in the working, ad-hoc judges cannot be appointed. We will have to make this change, that the ad-hoc judges will be sitting with a condition that they will be sitting with benches which are dealing with criminal appeals, with one sitting judge as the presiding judge. So, to that extent, we require that moderation. We will have to have that. That's the reason why we have listed".
The Court has underlined: "The judgment itself says it is a continuous mandamus. It also says that it is a living constitution we will have to modify. " Chief Justice Khanna bench advised that ad hoc judges be paired with sitting judges, with the latter presiding over benches.
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