SC allows HC to appoint ad-hoc judges to deal with case backlog

NEW DELHI: Considering a backlog of over 18 lakh criminal cases, the Supreme Court on Thursday allowed the high courts to appoint ad-hoc judges, not exceeding the 10 per cent of the court's total sanctioned strength.

A special bench comprising Chief Justice Sanjiv Khanna and Justices B R Gavai and Surya Kant relaxed and kept in abeyance certain conditions the top court had imposed in its April 20, 2021 judgment on appointment of ad-hoc judges in the high courts.

The verdict, which was authored by former Chief Justice S A Bobde, directed retired high court judges to be appointed as ad-hoc ones for a period of two to three years to clear the backlog.

While one condition said the ad-hoc judges couldn't be appointed if a high court worked with 80 per cent of its sanctioned strength, the other said ad-hoc judges could sit separately on benches to deal with cases.

Relaxing the conditions, CJI Khanna said, "Having regard to the situation, we are inclined to keep the observations from the conditions...of the order and judgement dated April 20, 2021 that recourse to the appointment of ad-hoc judges under Article 224A should not be made unless 80 per cent of the sanctioned strength is already either recommended or working," said the CJI.

The court said, "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 bench said each high court should keep the appointment to two to five ad-hoc judges and not exceed 10 per cent of the total 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," said the apex court's order.

On the issue of memorandum of procedure on appointment of ad-hoc judges, the bench said it was already in place and would be applied and resorted to for their appointments.

It also kept in abeyance the condition on ad-hoc judges to sit separately on benches and said they would be part of the division bench presided over by a sitting high court judge.

The bench said, if needed, it would re-assemble for issuing further directions on the issue.

At the outset, attorney general R Venkataramani said the Centre was in agreement with the proposal mooted by the bench on the last occasion.

The bench had suggested that ad-hoc judges could be appointed as puisne judges of a division bench of the high court to deal with criminal appeals.

Referring to the National Judicial Data Grid, the bench said there were over 62 lakh cases pending in high court and of them, more than 18 lakh were criminal in nature.

The bench on January 21 asked counsel for parties and attorney general to address the question whether ad-hoc judges could be appointed to sit with the regular high court judges in division benches of high courts.

The bench said it could partly modify the 2021 judgement to ensure ad-hoc judges were appointed to decide criminal appeals by division benches presided over by sitting high court judges.

The 2019 case titled as Lok Prahari v. Union of India is being heard by the bench in which the judgement was delivered in 2021.

The bench had observed the process suggested by the Centre for appointment of ad-hoc judges in high courts was "very cumbersome" and underlined the adoption of a simpler procedure so to not defeat the real objective of their appointment.

The rarely used Article 224A of the Constitution deals with the appointment of ad-hoc judges in high courts and says "The Chief Justice of a High Court for any State may at any time, 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".

The top court also laid down guidelines to regulate the appointments.