Ad hoc Judges Can Sit In Single Benches Or In Division Benches With Sitting Judges Of High Court : Supreme Court Clarifies

The Supreme Court on Thursday clarified that ad hoc judges appointed in High Courts can constitute single benches or can sit with sitting judges in division benches.

The Court also left it to the discretion of the Chief Justice of the High Court to decide who should be the presiding judge if a division bench is constituted with a sitting judge and an ad hoc judge.

Article 224A of the Constitution allows the appointment of retired High Court judges as ad hoc judges. As per the April 2021 judgment, in which the Supreme Court had issued directions for the appointment of ad hoc judges under Article 224A, ad hoc judges must sit in division benches consisting only of them. In January this year, the Court had kept this condition in abeyance.

Today, a bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi clarified that ad hoc judges can sit in division benches with sitting judges or as single judges.

The condition in the April 2021 order that ad hoc judges must occupy only division benches comprising them was passed apparently to obviate the situation where an ad hoc judge has to sit as a junior to a sitting judge.

Today, CJI Kant said that an ad hoc judge might express difficulty about sitting as a junior to a sitting judge. "The other side is also there. The sitting judge also might raise an objection - why should I sit as a junior? This can be a problem. We are just tentatively thinking, if the Chief Justice is able to persuade a sitting judge to sit as a bench partner with the former judge presiding over the bench....we can give that space and discretion to the High Court Chief Justice"

Attorney General for India R Venkataramani also said that it would be better to leave the matter (as to who should preside the bench) to the discretion of the Chief Justice. "Perhaps the Chief Justice can call for a conference of all the Judges and talk it over and reach an internal understanding," AG said.

Senior Advocate K Parameshwar, the amicus curiae in the matter, informed the bench that as per paragraph 61 of the April 21 judgement, "the Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them." This condition was kept in abeyance in January 2025. Parameshwar also said that ad-hoc judges should be permitted to sit as single benches as well, considering the long pendency of appeals in certain High Courts such as Allahabad.

Modifying the earlier order, the bench dictated :

"In modification of the order dated 30th January 2025, it is clarified that if there are two ad-hoc judges appointed in a High Court, it will be the prerogative of the Hon'ble Chief Justice of the High Court to constitute a division bench. Similarly, we leave it to the entire discretion of the hon'ble Chief Justice of the High Court to constitute a bench consisting of the ad-hoc judge and a sitting judge, wherever necessary, and resolve at his level as to who will preside the bench in the manner as may be agreeable to both the judges. There shall be no impediment in constituting the single judge benches of ad hoc judges.

It is further clarified that with the above stated clarified the main judgment dated April 20, 2021, shall also be deemed to have been suitably modified."

The Court passed the directions for the appointment of ad hoc judges to tackle the mounting pendency of cases in High Courts. As per the April 2021 judement, ad hoc judges can be appointed only if the vacancies exceed 20% of the posts. However, this condition was relaxed in January 2025.