Explainer : Appointment Of Ad-Hoc Judges Under Article 224A

What is Article 224A?

Known as a “dormant provision” of the Indian Constitution, Article 224A was inserted by the Constitution (Fifteenth Amendment) Act, 1963.

It is activated to deal with the unprecedented situations arising from the backlog of cases pending in the High Courts. As per the National Judicial Data Grid, the total number of pending cases across the High Court is 63, 63, 580, with over 12 lakh cases pending in the Allahabad High Court alone.

Article 224A enables a Chief Justice of a High Court for any State, with the previous consent of the President of India, to request a former High Court judge to “sit and act as a judge” of the High Court. The consent of the retired judge is necessary to invoke this Article.

The retired judge shall be entitled to allowance as by an order determined by the President. He shall exercise all the jurisdiction, powers and privileges of a High Court judge. However, for all other purposes, he shall not be deemed to be a judge of the High Court.

While the Indian Constitution provides for Article 224, which allows for the appointment of Additional and Acting Judges, Article 224A allows for the retired judges only for their expertise and experience to decide cases.

Article 127 provides for the appointment of judges as ad hoc judges of the Supreme Court.

History of Article 224A

At the inception of the Constitution, Article 224(draft Article 200) provided for the appointment of retired judges as ad hoc judges. It was taken word-for-word from Section 8 of the Supreme Court of Judicature Act in England.

In the Constituent Assembly debates, some of the members objected that the appointment of ad hoc judges is anomalous when the Constitution itself fixes the age of retirement of High Court judges without any question of extension. It was also said that the provision will likely be misused by the Chief Justice by inviting a friend of his who is a retired judge.

However, Dr BR Ambedkar supported that there is every ground to include draft Article 200 since the provision providing for temporary or additional judges was altogether deleted. Therefore, there must be some kind of provision for the disposal of certain business, for which it was not feasible to appoint a temporary judge.

But it was recalled through the Constitution (Seventh Amendment) Act, 1956, as it was found to be inadequate and unsatisfactory. Article 224 was replaced by a provision for the appointment of Additional and Acting Judges in temporary vacancies.

The provision for retired judges as ad hoc judges was then reintroduced in 1963.

How many times has Article 224A been invoked?

Article 224A has rarely been invoked in judicial history. It was invoked for the first time in 1972 for the appointment of retired Justice Suraj Bhan of the Madhya Pradesh High Court as an ad hoc judge for one year for the disposal of election petitions.

Justice P. Venugopal of the Madras High Court was appointed as an ad hoc judge, and then, Justice OP Srivastava was appointed as an ad hoc judge in the Allahabad High Court in 2007 in the special bench hearing the Ram Janbhoomi matter.

How do appointments take place under Article 224A

As per the 1998 Memorandum of Procedure(MoP) prepared subsequent to Supreme Court Advocate-on-Record Association v. Union of India(1993) (Second Judges case) and read with the Advisory Opinion rendered in 1998 Special Reference for "attendance of retired judges at sittings of High Courts", the appointment of retired judges is a collaborative process between the executive and the judiciary.

• Chief Justice of India will obtain the consent of the retired judge
• CJI will communicate to the Chief Minister of the concerned State the name of the retired judge and the period for which he is required to sit and act
• Chief Minister, in consultation with the Governor, forwards CJI's recommendation to the Union Ministry of Law and Justice.
• Union Minister of Law and Justice would then consult the CJI and on receipt of CJI's advice, the same would be forwarded to the Prime Minister
• Prime Minister would then advise the President and as soon as his consent is given, the Secretary to the GOI, Department of Justice will inform the Chief Justice of the High Court and the CM and necessary notification will be issued in the Gazette of India.

How have the Courts interpreted Article 224A?

In Krishan Gopal vs. Shri Prakash Chandra & Ors(1974), while dealing with the appointment of a retired judge of the Madhya Pradesh High Court, appointed as an ad hoc judge, the Supreme Court five-judge bench interpreted the words “but shall not otherwise be deemed to be a Judge of that Court”.

It said that for the purpose of jurisdiction, powers and privileges, the person shall be deemed to be a judge of that Court. However, otherwise, for instance, for the purpose of transfer, he would be deemed to be a Judge of that Court.

Subsequently, it was reiterated in Justice P Venugopal vs. Union of India and Ors., (2003) that ad hoc judges do not become part of the High Court. Therefore, issues of pension etc does not arise.

In Union of India vs. Sankalchand Himatlal Sheth(1977), the Supreme Court explored why the consent of the retired judge is necessary under Article 224A. It is simply for the reason that the person ceases to be a judge once he demits the office at a prescribed age and therefore is not bound by conditions of service.

In Anna Mathew vs. N. Kannadasan (2009), the Madras High Court said that for appointments under Article 224A and Article 127, the consultation with the Collegium would not be necessary as the Chief Justice is required to recommend the name. However, here, the High Court was dealing with appointments to the Consumer Disputes Redressal Commission.

In Indian Society of Lawyers vs. President of India(2011), the full bench of the Allahabad High Court held that the process of appointments under Article 217 does not apply to retired judges appointed under Article 224A.

Guidelines for the appointment of ad hoc judges

In Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others(2021), the Supreme Court extensively dealt with Article 224A. It identified the reasons, such as the docket explosion and the arrears due to vacancies, as reasons for sustaining Article 224A.

The Court issued guidelines as follows:

When Article 224A is triggered:

• If vacancies are more than 20% of the sanctioned strength
• Cases in a particular category are pending for over 5 years
• More than 10% of the backlog of pending cases are over five years old
• The percentage of disposal is lower than the institution of cases
• Situation of mounting arrears

Pre-recommendation process:

• Past performance in terms of quality and quantum of disposal
• Chief Justice of High Court must prepare a panel of judges and former judges
• Recommendation should be routed through the Collegium

Appointment and tenure

• Recommendations by the Chief Justice of the High Court should be made three months in advance
• Number of appointment generally should be 2 to 5
• Tenure should be 2-3 years.
• Division bench should only be constituted by ad hoc judges
• Emoluments and allowances should be at par with a permanent judge minus pension

Subsequently, in January 2025, a bench comprising former Chief Justice of India Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant had kept in abeyance the condition of appointment of ad hoc judges if the vacancies are more than 20% of the sanctioned strength.

It also kept in abeyance the condition that the division bench should only be constituted by ad hoc judges. Ad hoc judges will sit in a bench presided over by a sitting judge of the High Court, and decide pending criminal appeals.

It also said that the appointment of ad hoc judges should not exceed 10% of the sanctioned strength.

Again, in December 2025, the Supreme Court clarified that ad hoc judges can constitute a single bench or sit with sitting judges in a division bench. It also left it to the discretion of the Chief Justice of the High Court to decide who would be the presiding judge in the division bench.