The observation came as the apex court revisited the issue of judicial pendency and the slow pace at which vacancies in high courts are being addressed. The bench noted that Article 224A of the Constitution, which allows the appointment of retired high court judges as ad hoc judges, was intended precisely to deal with extraordinary backlogs, but has largely remained dormant in practice.
Article 224A empowers the President to appoint a retired judge of a high court to sit and act as a judge of that court, with the prior consent of the judge concerned and after consultation with the Chief Justice of the high court. Although the provision has existed since the Constitution came into force, it was rarely invoked for decades, as high courts and governments relied mainly on regular appointments and temporary additional judges under Article 224.
In April 2021, the Supreme Court sought to revive the provision, holding that reappointment of retired judges could be an effective short-term measure to tackle case pendency. The court laid down a detailed framework to guide high courts and governments, stressing that ad hoc judges should be appointed only when vacancies exceed a specified threshold and when pendency crosses defined levels. It also clarified that such appointments should not be seen as a substitute for regular judicial appointments.
However, the 2021 ruling linked the use of Article 224A to vacancy positions, effectively requiring high courts to first exhaust regular appointment routes. This linkage, the court acknowledged on Thursday, left little room for chief justices of high courts to proactively invoke the provision, even when pendency was severe.
Recognising these constraints, the Supreme Court on January 30 this year relaxed the conditions governing ad hoc appointments. The revised directions delinked the reappointment of retired judges from strict vacancy thresholds, giving chief justices greater discretion to recommend such appointments based on pendency and workload. The court had then emphasised that the constitutional intent was to provide flexibility, not to create procedural hurdles that defeat the purpose of the provision.
Despite this relaxation, the bench expressed concern that no retired high court judge has been appointed as an ad hoc judge under Article 224A so far. It observed that experienced judges who have spent decades on the bench possess institutional memory, subject expertise and familiarity with court processes, all of which could be deployed quickly without the long gestation period required for new appointees.
Judicial data continues to underline the scale of the problem. High courts collectively face tens of lakhs of pending cases, with several courts operating with vacancy levels close to or above 30 per cent. While regular appointments have picked up pace at intervals, the pipeline remains uneven, with delays arising from collegium recommendations, executive processing and issuance of warrants of appointment.
Legal experts note that ad hoc appointments could offer immediate relief, particularly in courts burdened with criminal appeals, old civil suits and constitutional matters pending for years. Retired judges, they argue, can be assigned specific categories of cases or fixed tenures, allowing regular benches to focus on fresh filings and urgent matters.
At the same time, the Supreme Court has consistently cautioned that Article 224A is not a substitute for structural reform. The court has reiterated the need for timely filling of sanctioned judicial posts, periodic revision of judge strength based on caseload, and improvements in court infrastructure and staffing. It has also stressed that ad hoc judges must be appointed transparently, for limited durations, and with clearly defined responsibilities to preserve judicial independence.