AD HOC JUDGES: ARTICLE 224A: NEED OF THE HOUR

The original Article 224 of our Constitution corresponded to Article 128, and provided for appointment of a retired High Court Judge to sit and act as a Judge of that State, subject to previous consent of the President, and the consent of concerned retired Judge. Upon commencement of the Constitution (7th Amendment) Act, 1956, i.e. from 01.11.1956 onwards, the original Article 224 was replaced with the existing Article 224 as we find today in our constitution. Curiously, the provision contained in the original Article 224 was re-introduced as Article 224A, by way of Constitution (15th Amendment) Act, 1963.

So far, we have had only 3 instances of appointment of such Ad-Hoc Judges under Article 224A:

• 1. Justice Suraj Bhan was appointed as an Ad-Hoc Judge of Madhya Pradesh High Court, in 1972, to hear Election Petitions. The appointment was for a period of one year or till the disposal of the election petitions, whichever is earlier.¹
• 2. Justice P. Venugopal was appointed as an Ad-Hoc Judge of Madras HC in 1982, with a one-year renewal in 1983.
• 3. Justice O.P. Srivastava was appointed as an Ad-Hoc Judge of Allahabad HC in 2007 to hear the Ayodhya Title Suit.

The Article 224A has remained mostly dormant throughout its lifetime, however, by the decision of the Hon’ble Supreme Court in Lok Prahari v. Union of India² , the Article 224A was again resuscitated, considering the unprecedented situation arising from the backlog of cases pending in the High Courts, coupled with the large number of vacancies in appointment of Additional & Permanent Judges. It must be noted that no appointments under Article 224-A was made after this decision.

It is extremely important to note that in Lok Prahari v. Union of India³ , our Apex Court was very conscious of the fact that Article 224A has to have its own limitations and restrictions, as Ad-Hoc Judge cannot be allowed to become a substitute for regular appointments under Article 224. Considering the apprehension, a caveat was added that, ‘at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224-A’.

Vide order dated 30.01.2025⁴, this particular condition appears to have been relaxed. Also, the manner of constitution of Division Bench comprising of Ad-Hoc Judges also seems to have been modified. Vide order dated 30.01.2025⁵ , the Hon’ble Apex Court held that:-

"We further observe that 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 Memorandum of procedure of 2021 is available on the official website of the Department of Justice⁶, which is consistent with the mode and mannerism for such appointments prescribed by the Hon’ble Apex Court in Lok Prahari v. Union of India⁷.

CONCLUSION

All in all, the decision appears to have opened an excellent gateway for disposing off all pending Criminal Appeals that are heard by Division Benches of the High Courts, considering the large number of pendency in appointment of Additional or Permanent Judges to the High Courts. In practice, hearing of Criminal Appeals is a very time taking and lengthy procedure where each and every evidence has to weighed and appreciated, also, all the decisions applying to such facts and circumstances need to be analyzed, and most of all, someone’s life and liberty hangs in the balance. Hence, a large chunk of judicial time is expended in the hearing of these criminal appeals. Further, if such criminal appeals are dismissed at the High Court level, the only recourse available to a litigant is Article 136 of the Constitution, where, more than 90-95% of the Special Leave Petitions are dismissed on the first day of the hearing. Hence, the approach of the Hon’ble Apex Court seems to be a very balanced one and it is targeted towards disposal of a particular type of case i.e. towards disposal of Criminal Appeals that are heard by Division Benches.