New Delhi: Nearly a year after the Supreme Court opened the door for the appointment of ad-hoc judges in high courts to address the mounting backlog of criminal cases, not a single such appointment has been made across the country. Despite clear judicial sanction and constitutional backing, the initiative has failed to take off, primarily because none of the high courts have recommended names for ad-hoc judges so far.

People familiar with the judicial appointment process said that none of India’s 25 high courts have forwarded proposals to appoint retired judges on an ad-hoc basis. As a result, the Union law ministry has not received even a single recommendation from any high court collegium, effectively stalling what was envisaged as an important measure to ease the pressure on an overburdened justice delivery system.

The issue is particularly significant in the context of the growing pendency of criminal cases in high courts, which currently stands at over 18 lakh. Concerned about the impact of such delays on the right to speedy justice, the Supreme Court on January 30, 2025, had allowed high courts to appoint ad-hoc judges under Article 224A of the Constitution. The court permitted high courts to appoint retired judges on an ad-hoc basis, subject to a cap of 10 per cent of the court’s total sanctioned judicial strength.

However, nearly twelve months later, the mechanism remains unused.

According to officials aware of the process, the lack of progress is not due to any procedural hurdle at the central government level but rather the absence of initiative from the high courts themselves. Under the established system, the process for appointing ad-hoc judges broadly mirrors that followed for regular high court appointments.

The procedure begins with the collegium of the concerned high court identifying and recommending suitable candidates, typically retired judges with clean service records and willingness to return to the bench for a limited tenure. These recommendations are then sent to the Department of Justice under the Union law ministry. The department examines the proposals, adds inputs such as background details and service records, and forwards the file to the Supreme Court collegium.

The Supreme Court collegium then deliberates on the recommendations and, if it approves, sends its final advice to the government. For regular judges, the President of India signs a formal warrant of appointment. In the case of ad-hoc judges, while no warrant is signed, the President’s consent is still required before the appointment is finalised.

Despite this clearly laid-out process, no high court has initiated the first step.

Article 224A of the Constitution, which provides the legal basis for such appointments, allows a chief justice of a high court, with the prior consent of the President, to request a retired judge of that or any other high court to sit and act as a judge for a temporary period. Although this provision has existed for decades, it has been used extremely sparingly. Officials noted that barring one isolated instance, there is virtually no precedent of retired judges being appointed as ad-hoc judges in high courts.

The Supreme Court itself acknowledged this underutilisation when it revisited the issue in recent years. In a landmark judgment delivered on April 20, 2021, the apex court laid down a framework to operationalise Article 224A more effectively. The verdict, authored by former Chief Justice of India S A Bobde, recognised the alarming pendency of criminal appeals and directed that retired high court judges be appointed as ad-hoc judges for fixed tenures of two to three years to help clear the backlog.

The 2021 judgment imposed certain conditions to ensure that the appointment of ad-hoc judges did not become a substitute for filling regular vacancies. One key condition stated that ad-hoc judges could not be appointed if a high court was functioning with at least 80 per cent of its sanctioned strength. Another condition allowed ad-hoc judges to sit on separate benches to exclusively hear pending criminal matters.

However, as pendency continued to rise and vacancies persisted, the Supreme Court later revisited these restrictions. A special bench comprising then Chief Justice Sanjiv Khanna and Justices B R Gavai and Surya Kant reviewed the earlier directions and decided to relax some of the conditions. The bench kept the 80 per cent strength requirement in abeyance, at least temporarily, recognising that many high courts were struggling with both vacancies and heavy caseloads simultaneously.

In its subsequent order, the Supreme Court clarified that each high court could appoint between two and five ad-hoc judges, subject to the overall ceiling of 10 per cent of the court’s sanctioned strength. The court also modified the bench composition requirement, directing that ad-hoc judges should sit alongside sitting judges rather than on separate benches.

“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 had said, underlining that the objective was to supplement, not fragment, the existing judicial structure.

Despite these clarifications and relaxations, the ground reality remains unchanged. Legal experts point out that the reluctance of high courts to invoke Article 224A may stem from multiple factors, including institutional conservatism, administrative hesitation, and concerns about the logistics and funding of ad-hoc appointments. Some also argue that there may be an underlying preference to push for permanent appointments rather than temporary solutions.

At the same time, critics warn that continued inaction defeats the very purpose of the Supreme Court’s intervention. Criminal appeals, many involving undertrials or convicts awaiting final adjudication, often languish in high courts for years. Delays not only undermine public confidence in the justice system but also have serious consequences for personal liberty and the rule of law.

The Supreme Court, while allowing ad-hoc appointments, had made it clear that the measure was not meant to replace the constitutional obligation to fill sanctioned vacancies on a regular basis. Instead, it was conceived as a stopgap arrangement to deal with extraordinary levels of pendency, particularly in criminal cases where delays can be especially damaging.

Nearly a year after the January 2025 order, the absence of any ad-hoc judge appointments raises questions about institutional will and accountability. With pendency continuing to mount and regular vacancies remaining unfilled in several high courts, the gap between judicial policy and practical implementation has become increasingly evident.

Whether high courts will eventually take advantage of the constitutional provision and the Supreme Court’s green signal remains to be seen. For now, the promise of ad-hoc judges as a tool to reduce criminal case backlog remains unrealised, even as millions of cases await resolution across the country.