Ex-HC Judges Working As Ad-Hoc Ones Can Preside Over Single-Judge, Division Benches

The Apex Court also asked the Centre to frame a policy or fine-tune the existing one on the appointment of former high court judges as ad-hoc judges, saying "there is such a vast pool of judicial talent.... They retire at the age of 62 years and their experience can be used to deal with the pendency".

A bench headed by the then Chief Justice S A Bobde, on April 20, 2021, took note of the huge pendency of around 57 lakh cases in the high courts and termed it a "docket explosion". It had paved the way for the appointment of retired high court judges as ad-hoc ones for a period of two to three years to clear the backlog of criminal cases.

Laying down a slew of guidelines on the tenure, numbers and percentage of former judges who could be appointed as ad-hoc ones, the bench had said the ad-hoc judges will sit in a bench presided over by a regular judge and decide pending criminal appeals.

Today, a bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi modified one of the aspects of the order and held that the former judges can also preside over single-judge benches and that they should not be made a junior partner of regular judges while sitting in a division bench.

The Apex Court said the chief justice of a High Court, depending upon the situation and requirement, may set up a division bench comprising a regular and an ad-hoc judge or even two ad-hoc judges.

"Several former judges have spoken to me. They are retired and willing to work but are very embarrassed to sit as junior judges as part of division benches. We are thinking aloud, if the chief justice is able to persuade the sitting judge to sit along with the former judge as a bench partner," the CJI said.

Attorney General R Venkataramani said it can be worked out internally and not by a judicial order.

"If there are two ad-hoc judges, the chief justice will decide to form their division bench. We also leave it to the chief justice to form a bench of a sitting judge and an ad-hoc judge wherever necessary and decide who will preside over the bench and in the manner agreeable to both the judges," CJI Kant said.

"There shall be no impediment in constituting a single-judge bench consisting of ad-hoc judges," he said, adding, "With this, the main judgment is also suitably modified."

On January 30, the Apex Court had allowed the high courts to appoint ad-hoc judges, not exceeding 10 per cent of the court's total sanctioned strength.

The bench had relaxed and kept in abeyance certain conditions the top court had imposed in its April 20, 2021 judgment on the appointment of ad-hoc judges in high courts.

The 2021 verdict had directed retired high court judges to be appointed as ad-hoc ones for a period of two to three years to clear the backlog of cases.

While one of the conditions said the ad-hoc judges could not be appointed if a High Court worked with 80 per cent of its sanctioned strength, another said the ad-hoc judges could sit separately on benches to deal with cases.

Relaxing the conditions, the bench had said, "Having regard to the situation, we are inclined to keep the observations from the conditions ... of the order and judgment 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."

The Court had 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 had said each high court should appoint two to five ad-hoc judges and their numbers must 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," the Apex Court's order had said.

This condition was modified today.

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

The rarely used Article 224A of the Constitution deals with the appointment of ad-hoc judges in high courts. It 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."

With PTI Inputs