Retired HC judges ‘embarrassed’ to sit as junior ad hoc judges to clear pendency: CJI

Chief Justice of India Surya Kant revealed on Thursday that retired High Court judges are reluctant to return to the Bench as ad hoc judges to clear the massive pendency of criminal cases for a simple reason: they are “embarrassed” to sit as junior judges alongside younger colleagues.

High Courts across the country are burdened by mounting arrears, particularly in criminal cases. Data from the National Judicial Data Grid shows that 18,98,833 criminal cases are pending in the 25 High Courts. Of these, 68.27% or 12,96,374 cases have been pending for over a year. Against a sanctioned strength of 1,122 judges, there are 298 vacancies in the High Courts as of December 15.

Alarmed by the backlog, the Supreme Court in a judgment in January activated Article 224A of the Constitution, allowing Chief Justices of High Courts to appoint retired former judges as ad hoc judges to clear criminal appeals.

However, the response from High Courts has been lukewarm since January, with several not sending names to the Supreme Court for appointment as ad hoc judges.

“In my travels to the various High Courts, I spoke to the Chief Justices. They said there were many former judges who were keen and willing to return to the Bench and work… But they feel very embarrassed to sit as a junior judge with a serving judge on Division Benches,” Chief Justice Kant told Attorney General R. Venkataramani during a special hearing.

Mr. Venkataramani pointed out that most criminal appeals were pending before Division Benches or two-judge Benches in the High Courts. The Chief Justice, accompanied by Justices Joymalya Bagchi and Vipul M. Pancholi, noted that a large number of cases were pending in the Allahabad, Punjab and Haryana, and Patna High Courts.

The Chief Justice said the problem existed from the other end as well. “The serving judges would ask why they should sit with a retired person heading the Bench… Can we persuade a sitting judge to be a Bench partner with a retired judge heading the Bench?” he said.

Amicus curiae and senior advocate K. Parameshwar referred to an April 2021 judgment on the appointment of ad hoc judges. He said the ruling had directed that if two ad hoc judges were appointed to a High Court, they should sit together as a Division Bench. He noted that the January 2025 judgment had modified this by directing that an ad hoc judge must necessarily sit with a serving judge.

Mr. Venkataramani suggested that Chief Justices of High Courts should internally discuss the issue with their colleagues and obtain concurrence. He said the quandary could be resolved through an “internal understanding” among serving judges. Chief Justice Kant agreed that Chief Justices should be given “space and discretion” to handle the issue.

“We leave it to the discretion of the Chief Justices of the High Courts to constitute a Bench comprising an ad hoc judge and a sitting judge wherever necessary and resolve it at his level as to who will preside over the Bench in a manner as may be agreeable to both judges. There shall be no impediment to constituting Single Judge Benches of ad hoc judges,” the court clarified in its order.

During the hearing, Justice Bagchi observed that the recruitment process and tenure of ad hoc judges required to be “fine-tuned”.

The Attorney General said the Memorandum of Procedure covered the process, but he would take another look.

“In High Courts, judges with vast experience and particular domain expertise demit office at the age of 62. There is this vast judicial talent going to waste. Why cannot the Centre formulate a policy for the utilisation of this talent? The ad hoc judges’ recruitment process needs some relook. The tenure and manner of their recruitment could be fine-tuned,” Justice Bagchi observed orally.