The decision of the Supreme Court Collegium in its meeting dated 3 February 2026 approving the appointment of five retired judges as ad hoc judges of the High Court of Judicature at Allahabad for a period of two years under Article 224A of the Constitution of India marks a significant moment in the constitutional management of judicial arrears. It signals not merely an administrative choice but a conscious revival of a constitutional mechanism that had remained largely dormant for decades.
Article 224A, introduced by the Constitution (Fifteenth Amendment) Act, 1963 empowers the Chief Justice of a High Court, with the previous consent of the President, to request a former judge of that Court or of any other High Court to “sit and act” as a judge of the High Court for that State with his consent. Though the marginal heading employs the term “appointment,” the constitutional text carefully avoids it, instead using the language of request and consent. This textual distinction reinforces the exceptional and temporary character of the provision and underscores that Article 224A is not a parallel source of regular judicial appointments but an emergency constitutional device intended to meet extraordinary circumstances.
A corresponding provision exists in Article 128 of the Constitution with respect to the Supreme Court. While Article 128 formed part of the original constitutional framework, the eligibility of a retired High Court judge to sit and act as a judge of the Supreme Court was introduced by the same Fifteenth Amendment. The simultaneous expansion of both Articles reflects a coherent legislative intent to provide constitutional flexibility at both levels of the higher judiciary in times of institutional stress.
For several decades after its enactment in 1963, Article 224A remained largely unused with only three recorded instances of its invocation.
Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as an ad hoc Judge on 23 November 1972 after he had demitted office on 02 February 1971. His appointment was for a period of one year or till the disposal of election petitions entrusted to him, whichever was earlier. Thus, it was with a specific purpose.
Justice P. Venugopal of the Madras High Court was a Judge for a short period of less than three years and close to his retirement, he was appointed to a Commission of Inquiry to inquire into certain incidents that took place in Coimbatore town on 23 July 1981 and again appointed to a one-man commission to inquire into incidents of communal riots by order dated 22 March 1982. He was appointed to the post of ad hoc Judge in the year 1982 and yet again his term was renewed for a period of one year from 19 August 1983.
Most recently in the year 2007, Justice O.P. Srivastava was appointed as an ad hoc Judge in the Allahabad High Court. He was one of the Members of the Special Bench constituted for hearing of the Ayodhya matter with the avowed object of facilitating continued and continuous hearing of the matter.
This dormant position changed with the judgment of the Supreme Court in Lok Prahari v. Union of India decided on 20 April 2021. Confronted with the unprecedented accumulation of arrears in the High Courts, the Court invoked Article 224A as a constitutionally sanctioned solution that ought to be exhausted before embarking upon structural or legislative overhauls. The judgment laid down broad guiding principles for the engagement of retired judges, emphasising that constitutional tools already available must be meaningfully deployed to address systemic delay.
It was observed therein that the past performance of recommendees, both in quality and volume of case disposal, should be considered since the objective is to reduce backlog. The Chief Justice should prepare a panel of serving and former Judges, primarily those nearing retirement or who have retired within the last year. In exceptional cases, Judges who retired earlier may be included for their subject-matter expertise, or where they prefer a short interval before a second innings. Preparation of the panel should involve a personal interaction between the Chief Justice and the concerned Judge to obtain consent and assess relevant factors.
This trajectory was further developed by the order dated 30 January 2025 passed by a three-Judge Bench comprising Chief Justice Sanjiv Khanna, Justice B R Gavai and Justice Surya Kant. The Bench clarified that retired judges could be appointed under Article 224A to deal with pendency in criminal matters, relaxed certain earlier trigger points and permitted each High Court to appoint between two and five ad hoc judges subject to an overall ceiling of ten percent of the sanctioned strength. It was directed that such ad hoc judges would sit in Benches presided over by sitting judges of the High Court and would hear pending criminal appeals. Crucially, the Court reiterated that the existing Memorandum of Procedure would govern such appointments.
The Memorandum of Procedure, prepared in 1998 pursuant to the judgment in Supreme Court Advocates-on-Record Association v. Union of India (Second Judges case) read with the advisory opinion in Special Reference No. 1 of 1998, contains a specific provision in the form of its paragraph 24 governing the attendance of retired judges at sittings of High Courts under Article 224A. The procedure envisages a consultative process beginning with the Chief Justice of the High Court, involving the Chief Minister, the Governor of the State, Chief Justice of India and culminating in the advice of the Prime Minister to the President.
It is true that the Memorandum of Procedure is the product of administrative discussions and does not constitute “law declared” by the Supreme Court within the meaning of Article 141. Nevertheless, in its earlier order dated 20 April 2021, the Supreme Court consciously chose to rely upon paragraph 24 of the MoP as a pragmatic starting point, observing that its implementation would enable an assessment of both progress and impediments. The Court further clarified that since the retired judges concerned had already undergone constitutional appointment earlier, reference to Intellgence Bureau or other agencies for background verification would not be necessary, thereby ensuring expedition. The adherence to the MoP was reiterated by Supreme Court in its later order dated 30 January 2025.
Viewed in this backdrop, the recent decision of the Supreme Court Collegium assumes doctrinal and institutional significance. It represents a calibrated use of Article 224A consistent with its original constitutional design, the judicial guidance in Lok Prahari of 2021 and the subsequent clarifications of 2025. Properly deployed, the provision does not dilute judicial independence nor undermine the regular appointment process. On the contrary, it strengthens the judiciary’s capacity to respond to crisis without departing from constitutional discipline.
For the Bar, this revival underscores the need to engage constructively with ad hoc Benches and to assist in the expeditious disposal of long-pending criminal appeals affecting personal liberty.
For the Bench, it reinforces the responsibility to ensure that Article 224A remains a measure of necessity and exception, not convenience or substitution.
In conclusion, the renewed invocation of Article 224A reflects a mature constitutional response to institutional backlog. It demonstrates that the Constitution, when read with fidelity to its text and purpose, contains within itself the means to address even the gravest challenges confronting the justice delivery system.
Author is a Senior Advocate practising mainly in Delhi.
[The opinions expressed in this article are those of the author.]