On the 3rd February 2026, the Supreme Court Collegium approved the appointment of retired judges as ad hoc judges to the Allahabad High Court under Article 224A of the Constitution. At the first glance, the decision appeared reassuring. It promised experience on the Bench, quicker disposal of cases, and some relief from an overwhelming backlog in cases.
Yet the constitutional law requires more than reassurance. It requires the scrutiny of the act by collegium. The real question is not whether retired judges can help they often can but whether this decision addresses the problem it claims to solve. Article 224A was never meant to operate as a staffing arrangement. Its repeated invocation forces a more uncomfortable question: why does one of India's largest High Courts continue to function with persistent and predictable judicial vacancies?
Relying on the ad hoc appointments cannot replace the timely appointment of permanent judges in the high courts without distorting the constitutional design. The framers envisaged Article 224A as an exceptional device, to be used sparingly in the extraordinary situations. They did not design it as a routine administrative response to long-standing institutional delay. When an emergency provision begins to do everyday work, the emergency no longer lies in the caseload it lies in the system itself.
More troubling still are reports that members of the Bar hesitate to accept elevation to the Allahabad High Court. This reluctance points to a deeper institutional malaise that numbers alone cannot explain. Instead of confronting the structural, administrative, and credibility deficits that discourage judicial appointments in the court, the Collegium appears to have responded to the most visible symptom pendency. In doing so, it risks mistaking short-term relief for reform, touching only the surface of a much deeper problem while leaving the institution itself exposed.
What Article 224A Was Meant to Do and What It Was Not
Article 224A allows a retired High Court judge to “sit and act” as a judge of a High Court with the consent of the President and the judge concerned. It is an enabling provision, not a substitute mechanism. A safety valve, not a parallel system. To understand this, we have to revisit the constitutional imagination of its drafter, BN Rau a name often mentioned in passing, rarely understood in depth.
Rau anticipated pressure on the judiciary even before India became a republic. During his consultations in the United States and the United Kingdom, he observed how retired judges could be temporarily recalled in moments of exceptional stress. That insight shaped what would later become Articles 128 and 224A of the constitution.
The idea was simple and restrained: use experience to handle emergencies. This was not to compensate for routine vacancies in the courts. Not to paper over administrative delays. And certainly not to normalise judicial short-termism. That distinction matters today more than ever.
The Allahabad Question: Why Are Vacancies the Norm?
The Allahabad High Court is not facing a sudden crisis. Its vacancies are chronic, structural, and long-standing. Judges retire. Recommendations move slowly. Files linger between the judiciary and the executive. Months turn into years. Against this backdrop, appointing ad hoc judges risks answering the wrong question.
The real issue is not whether retired judges can help. They can and they often do. The real issue is this: Why has the system accepted vacancies as inevitable?
If constitutional posts remain unfilled for years, and the response is to recall retirees, the message is clear. The exception is quietly replacing the rule.
Lok Prahri and the Turn to Pragmatism
Judicial endorsement of Article 224A gained momentum after Lok Prahri v. Union of India, where the Supreme Court acknowledged alarming pendency across High Courts and encouraged the appointment of ad hoc judges. The Court rightly rejected the Union Government's argument that Article 224A can be used only after filling all regular vacancies under Article 217. On law, the Court was correct and the non-obstante clause in Article 224A in the constitution makes that clear. But constitutional law is not only about what is permissible. It is also about what is prudent.
Lok Prahri case reflects a broader institutional temptation: when reform is slow and coordination difficult with executive, temporary fixes feel attractive in nature and appealing. Yet history shows that temporary constitutional shortcuts often outlive the crises that justified them.
The Supreme Court's decision in Lok Prahri case to “activate a dormant provision” of the Constitution was frank in the diagnosing the scale of judicial distress: more than 57 lakh cases are pending today and nearly 40 per cent vacancies across High Courts in India.
What it stopped short of confronting is, however, was the constitutional implication of that diagnosis. When a crisis becomes chronic, emergency responses cease to be exceptional and appealing in nature. By laying down elaborate trigger points, tenure norms, numerical caps, and administrative procedures for invoking Article 224A, the Court has effectively converted a constitutional safety valve into a managerial instrument. This danger is subtle but profound in nature. A provision meant to operate at the margins is being pulled into the centre of judicial governance, risking the quiet normalisation of institutional failure.
The data placed before the Court further undermines the narrative that vacancies alone explain judicial delay and pendency of cases. The High Courts with relatively fewer vacancies continue to labour under massive backlogs, while others with higher vacancy ratios perform comparatively better. We have neglected this point in our system for quite some time. The collegium needs to think about it before applying article 224A for the appointment of ad-hoc judges in the courts.
This exposes a truth that is often avoided: pendency is not merely a problem of numbers, but the issue of governance. Weak case management, uneven allocation of judicial labour, and administrative inertia contribute as much to delay as sanctioned strength. In this context, the repeated invocation of Article 224A risks becoming a cosmetic solution one that improves disposal statistics without confronting the structural dysfunction that produced the backlog in the first place. That way collegium will never going to achieve its goal of reducing the pendency of the cases in the courts
More troubling still is the moral hazard embedded in the growing reliance on the ad hoc judges. The consultation notes in Lok Prahri case given by the Senior Advocate Arvind P. Datar repeatedly emphasise that Article 224A must operate in addition to, and never as a substitute for, appointments under Articles 217 and 224 of the constitution.
Yet constitutional experience teaches us that when stopgap arrangements become reliable, reform loses its urgency. If High Courts can continue functioning by recalling retired judges, delays in regular appointments become administratively survivable in the nature. Executive inaction becomes tolerable. Collegium inertia becomes manageable. In toto, Article 224A risks insulating constitutional actors from the consequences of their own delay.
This is where the constitutional concern sharpens into a democratic one. Article 224A was not designed to lower the institutional cost of failure. But it was meant to assist a functioning system under temporary strain not to stabilise a system that has accepted delay as routine. If the judiciary begins to rely on retired judges to perform core adjudicatory functions over extended periods, it risks hollowing out the very idea of a permanent constitutional court. Courts may continue to decide cases, but constitutional accountability rooted in timely appointments and institutional responsibility quietly recedes.
Comparative Practice, Constitutional Discipline
Comparative constitutional practice in the United Kingdom is often cited to justify India's resort to Article 224A, but that comparison only holds if one reads it in full. In the UK, the recall of retired judges is governed by the Senior Courts Act, 1981, and administered through the Judicial Appointments Commission and the Lord Chief Justice. Retired judges designated as “judicial office-holders on recall” are deployed for strictly time-bound assignments, usually to address short-term listing pressures, unexpected judicial illness, or specialist caseloads such as commercial or appellate work. Crucially, recall is never used to offset persistent vacancies. The UK judiciary treats prolonged understaffing as an administrative failure requiring political correction, not judicial improvisation. The constitutional discipline lies not in the recall power itself, but in the refusal to allow recall to become routine.
The limits of recall in the UK are also structural. Retired judges cannot be endlessly reappointed, cannot shape long-term jurisprudence, and are rarely placed in positions of institutional leadership. Their use of the ad-hoc judges is deliberately peripheral in the nature. More importantly, judicial vacancies in the senior courts are filled within predictable timelines, and any deviation in appointment attracts parliamentary scrutiny. They Recall functions as insurance, not infrastructure. This distinction matters because Article 224A, if used to compensate for routine delay, inverts the British model: it moves the exceptional to the centre while leaving the permanent appointment unresolved.
The United States offers a more nuanced but equally instructive example through its system of “senior judges” under 28 U.S.C. Section 371. Federal judges who assume senior status continue to hear cases voluntarily, often carrying substantial dockets. But this arrangement operates within a radically different constitutional framework. US judges enjoy life tenure. Vacancies are politically visible, publicly contested, and institutionally consequential in the nature. When confirmation delays occur, they trigger legislative hearings, media scrutiny, and electoral debate. Senior judges do not shield the system from accountability and transparency; they highlight its cost. In fact, empirical studies show that despite the availability of senior judges, prolonged vacancies still result in measurable delays forcing political resolution rather than administrative workaround.
Equally important is what senior judges in the US cannot do. They do not reduce the obligation of the President and Senate to appoint new judges. They do not sit indefinitely in the appointment. And they do not replace the expectation that courts must function at full sanctioned strength. Senior status supplements a complete system; it does not stabilise an incomplete one. That is the constitutional difference India must confront honestly the issue of appointments to the courts.
India's deployment of Article 224A diverges precisely at this point. Unlike the UK or the US, India's judicial appointment process already suffers from delay, opacity, and fragmented responsibility. In such an environment, recalling retired judges does not merely provide temporary relief it lowers the institutional cost of inaction. Comparative jurisprudence therefore does not validate routine use of Article 224A; it warns against it. The lesson from mature constitutional systems is not that retired judges can rescue courts, but that they are effective only where permanent institutions are kept whole and alive. Without that discipline, recall ceases to be a constitutional tool and becomes a constitutional alibi.
The Hidden Cost of Ad Hocism
Supporters of Article 224A argue that retired judges bring experience and efficiency; however, this claim, though valid, is incomplete. Judicial institutions depend not only on competence, but on continuity and accountability. Ad hoc judges, by design, lack both. They do not participate in long-term institutional reform. They do not shape the court's future. They are not invested in structural change.
Over-reliance on such appointments risks transforming High Courts into functional but hollow institutions capable of disposing cases, but increasingly detached from institutional responsibility. More dangerously, it lowers the cost of delay in the system.
If courts can cope through stopgap measures, the urgency to fill permanent vacancies diminishes. Executive delay in appointments becomes tolerable and the collegium inertia becomes manageable. The system survives, but it does not improve anyhow.
The Bar's Reluctance Speaks Louder Than Statistics
Perhaps the clearest warning sign lies outside judicial orders. Reports suggesting that members of the Bar are not reluctant to accept elevation to certain High Courts, including the Allahabad High Court, should concern us far more than pendency figures in the courts.
This reluctance is not about prestige alone. It reflects concerns about infrastructure, workload, institutional neglect, and credibility. These are systemic issues. Article 224A does not and cannot address them. Calling back retired judges without fixing why younger judges hesitate to join is not reform. It is deferral.
Lessons from Article 128: Use Without Dependence
The Constitution contains a parallel provision for the Supreme Court in Article 128, allowing retired Supreme Court judges to return temporarily. History shows that this power has been used sparingly and with restraint. Judges like Vivian Bose returned for limited periods, in specific circumstances, without altering the institutional balance of the Court. That restraint preserved legitimacy. The danger today is not the use of Article 224A, but its normalisation over due course.
Executive Delay: The Quiet Contributor to the Crisis
Judicial vacancies do not persist in the vacuum. They persist because appointments stall often at the executive level. Judicial records, including Sunil Samdaria v. Union of India (2018), document prolonged delays even after collegium recommendations are made to the executive.
When such delays exist, and the response is to appoint ad hoc judges, accountability shifts without responsibility being fixed. The executive escapes scrutiny. The judiciary absorbs the burden. That is not constitutional balance it is called constitutional convenience.
Emergency Provisions Should Not Replace Constitutional Duty
At its core, the Article 224A debate is not about numbers. It is about vision. Do we want a judiciary that manages pendency through emergency provisions? Or one that insists on institutional integrity through timely appointments and accountability? Article 224A can help courts breathe. It cannot teach them to walk again.
Sir BN Rau designed Article 224A as a limited response to exceptional stress, not as a workaround for systemic neglect by executive and the judiciary to cope with executive. Respecting that design requires restraint, transparency, and a renewed commitment to permanent judicial appointments in the courts. If India's High Courts are overwhelmed, the solution lies not in repeatedly recalling retired judges, but in fixing what prevents new ones from taking the Bench.
Because when exceptions become routine, the Constitution does not collapse overnight.It erodes quietly, incrementally, and dangerously. And by the time we notice, the cost is far higher than any judicial backlog.
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