Holding

Article 224A may be activated to appoint ad‑hoc judges to address High Court vacancies and pendency, subject to the Court‑prescribed guidelines and a continuing mandamus.

Summary

The Supreme Court, hearing a public‑interest writ petition filed by Lok Prahari, addressed the chronic backlog of about 57 lakh cases and the roughly 40% vacancy rate in High Courts. It held that the dormant constitutional provision under Article 224A can be invoked to appoint retired judges as ad‑hoc judges to clear old cases, provided a set of detailed guidelines is followed. The Court emphasized that this measure is supplementary to, not a substitute for, regular appointments and must be triggered only when vacancies exceed 20% or other specified criteria are met. It introduced the concept of a "continuing mandamus" to monitor implementation and directed the Ministry of Justice to report back after four months. The judgment also laid down specific parameters regarding the trigger point, embargo, pre‑recommendation process, tenure, number of appointments, role, and emoluments of ad‑hoc judges. Consequently, the petition was disposed with directions to formulate and apply these guidelines.

Issues considered

The constitutional validity of invoking Article 224A to appoint ad‑hoc judges for clearing High Court backlogs.
Whether the Supreme Court can issue detailed procedural guidelines and a continuing mandamus for the implementation of Article 224A.
The appropriate trigger points and criteria for activating Article 224A.
The relationship between ad‑hoc appointments under Article 224A and the regular appointment process under Articles 217 and 224.
The appropriate tenure, number, role, and emoluments of ad‑hoc judges appointed under Article 224A.

Legislation cited

Constitution of Indias. Art.214, s. Art.217, s. Art.224, s. Art.224A, s. Art.231, s. Second Schedule Part D

Subjects

Article 224Aad‑hoc judgesHigh Court vacanciescase backlogcontinuing mandamusjudicial appointmentsconstitutional lawjudicial administrationguidelinessenior advocates

Judgment

[2021] 3 S.C.R. 317 317

LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. A
SHUKLA IAS (RETD.)
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 1236 of 2019) B
APRIL 20, 2021
[S. A. BOBDE,CJI, SANJAY KISHAN KAUL AND
SURYA KANT, JJ.]
Constitution of India:
C
Art. 224A – Appointment of retired judges at sittings of High
Courts – Pendency of 57 lakhs cases in the High Courts along
with consistent ratio of vacancies of almost 40 per cent – Held:
Recourse to Art. 224A by appointment of ad hoc judges needed – It
would provide a ready-made pool of known judicial talent to deal
D
with the disposal of pending old cases – Certain checks and balances
to be provided for resorting to Art. 224A – Guidelines on aspects
such as, the trigger point to activate the provision, suggestion of an
embargo situation, pre-recommendation process, the methodology
of appointment, time to complete the process , tenure of
appointment, the number of appointments, the role of ad hoc Judges, E
emoluments and allowances, etc. to be arrived so as to facilitate
some element of uniformity – Since periodic review would be
required to suitably modify the guidelines proposed, concept of
continuing mandamus would be appropriate – Thus, issuance of
guidelines for invocation of Art. 224A.
F
Arts. 217, 224 and 224A - Appointment of permanent and
additional Judges, and ad hoc judges in the High Court – Process
to be followed – Explained.
Art. 224 – Objective of – Explained.
Art. 224A – Historical perspective – Explained. G

Constitutional jurisprudence – Continuing mandamus –
Concept of – Held: “Continuing mandamus” is a practice of issuing
continuing directions to ensure effective discharge of duties – Unlike
a writ remedy, a continuing mandamus is an innovative procedure
H
317
318 SUPREME COURT REPORTS [2021] 3 S.C.R.

A not a substantive one which allows the Court an effective basis to
ensure that the benefits of a judgment can be enjoyed by the right-
bearers, and its realisation is not hindered by administrative and/or
political recalcitrance – It is a means devised to ensure that the
administration of justice translates into tangible benefits.
B Issuing guidelines and further listing the matter, the Court
HELD: 1.1 It is trite to say that there is a docket explosion
in our country and that it is difficult for adjudication to take place
within a reasonable period of time. This crisis situation must be
tackled. Some innovation is always the rule of the game. In the
C present context, maybe a slightly different view has to be taken
in respect of the avowed purpose of Article 224A of the
Constitution of India providing for ad hoc judges. It is said so as
this Court is faced with the ground reality of almost 40% vacancies
remaining in the regular appointments (both permanent and
additional judges) over the last two years. A number of vacancies
D arising every year are barely filled in by fresh appointments. Thus,
it remains an unfulfilled challenge to bring the appointment
process to such numbers as would be able to cover the vacancies
existing and arising. [Para 20][336-A-C]
1.2 The present system of appointments as envisaged by
E the Constitution and as elucidated in the Collegium system makes
it clear that the first step is a recommendation from that High
Court by a collegium of the three senior-most judges presided
over by the Chief Justice of the High Court. This process in turn
requires wide consultation by the Chief Justice of the High Court
F to identify the requisite talent, so as to make the
recommendations. Contrary to some portrayed beliefs as if this
is an extremely subjective system, every Chief Justice is actually
required to solicit names from different sources whether it be
sitting judges, retired judges, or prominent members of the Bar.
It is from this pool of talent that he selects, after a discussion
G before the collegium, the most suitable candidates. It is thus, of
utmost importance that the flow of recommendations continues
for the appointment process to work successfully. The vacancies
existing and arising are always known, as a judge demits office in
the High Court on his 62nd birthday. The only exception can be
H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 319
(RETD.) v. UNION OF INDIA & ORS.

an unforeseen eventuality or an elevation to the Supreme Court A
of India. Thus, every endeavour has to be made to see that the
recommendations are made well in advance while maintaining a
balance between recommendations from the Bar and the
subordinate judiciary, about six months in advance as per norms
which were thought to be the appropriate time period within which
B
the whole process of appointment ought to be concluded. [Para
21][336-D-H]
1.3 On the basis of talent available; considering that the
age profile for elevation from the Bar is between 45 to 55 years,
there may be situations where at one go all recommendations
against vacancies may not be possible to be made. However C
nothing prohibits - or rather the exigencies of the appointment
process requires - recommendations to be periodically made
without unnecessarily waiting for the outcome of the first set of
recommendations. If this continuing pipeline operates and even
if some recommendations fall by the wayside, over a reasonable D
period of time the vacancies can be filled up. The current situation
of vacancies, especially in some of the larger courts with very
few recommendations in the pipeline seems to be the genesis of
this problem. [Para 22][337-A-C]
1.4 One of the most important administrative functions of E
the Chief Justice of the High Court is to identify suitable
candidates for elevation as judges of the High Court and make
recommendations in turn. The pipeline of recommendation of
Judges has to be kept flowing so as to cover vacancies. Once the
recommendation is made, opinions of State Governments are
solicited as also the input from the Intelligence Bureau. The F
recommendations are then processed by the Central Government
in all manners, before they are put up to the collegium of the
Supreme Court of India. This is another area of some concern as
there have been many cases which have remained pending for
long periods of time - though in view of certain queries posed in G
these judicial proceedings, the situation has now improved. In
normal circumstances, the total time period before names are
forwarded to the Supreme Court collegium should not exceed
four months after the recommendations are made by the collegium
of the High Court. [Paras 24, 25][338-B-E]
H
320 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 1.5 The Supreme Court collegium, which is the first three
judges, thereafter bestows its consideration on these names after
obtaining the opinions of the consultee judges. Those names which
find approval of the collegium are then recommended for
appointment to the Union of India. At that stage, the Government
either proceeds to appoint the judges or it may have some
B
reservations, in which case it would be within their right to return
the recommendations with the reservations they have over the
appointment. On reconsideration, if the recommendation is
reiterated, in terms of the prevalent legal position, the
appointment has to be made. The delays in this is a matter of
C concern as the recommendation of the collegium should not
remain pending for a long period of time. The said process should
be completed at the earliest. In some of the courts it is a challenge
to persuade competent and senior lawyers who may have large
practices to accept the position of the judge, and the pendency of
their names for a long period of time does little to encourage
D
them. The fact remains that the said process has not resulted in
filling up of vacancies for many years. It is not as if the vacant
posts are a small fraction, as it is noticed that they have been
hovering around the figure of 40% vacancies. [Paras 26, 27][338-
E-H; 339-A]
E 1.6 There is little doubt that challenge of mounting arrears
and existing vacancies requires recourse to Article 224A of the
Constitution to appoint ad-hoc judges which is a ready pool of
talent, (of course subject to their concurrence) as a methodology
especially for clearing the old cases. The existing strength of
F permanent and additional judges can be utilized for current and
not so old cases. The ad-hoc judges are absolved even from the
administrative responsibilities. They can concentrate on old cases
which are stuck in the system and may require greater
experience. The very provision makes it clear that it does not in
any way constrain or limit the regular appointment process and
G consent of the retired judge is sought to sit and act as a judge of
the High Court. One may say that this is largely a transitory
methodology till all the appointment processes are in place,
though that may not be the only reason to take recourse to the
said Article. [Para 40, 42][342-E-F; 343-B-C]
H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 321
(RETD.) v. UNION OF INDIA & ORS.

1.7 This Court would not like to encourage an environment A
where Article 224A is sought as panacea for inaction in making
recommendations to the regular appointments. In order to
prevent such a situation, certain checks and balances must be
provided so that Article 224A can be resorted to only on the
process having being initiated for filling up of the regular vacancies
B
and awaiting their appointments. Thus, there should not be more
than 20% of the vacancies for which no recommendation has
been made for this Article to be resorted to. This figure is placed
looking to the entire scenario where sometimes it may be difficult
to find the requisite talent at a particular stage which may have to
await some time period. However, certainly, it cannot be C
countenanced that no or very few recommendations are made for
a large number of vacancies by resorting to Article 224A. [Para
43][343-C-E]
1.8 The collegium of the Supreme Court has an important
role to play in the appointment of judges of the High Court. In D
the said conspectus, the exercise by the Chief Justice of the High
Court, the authority vested under Article 224A of the Constitution
would require a prior consent from the judge concerned, and that
recommendation in turn has to be routed through the collegium
of the Supreme Court. Of course, the previous consent of the
President of India (as advised) is necessary - but looking to the E
very nature of this appointment, which is of a retired judge who
for his judicial appointment has gone through the complete process,
time period of maximum three months is more than sufficient to
carry the process through all stages. This in turn would be
facilitated if the Chief Justice of the High Court takes the initial F
steps at least three months in advance so that there is no
unnecessary delay in this regard. [Para 44][344-A-C]
SP Gupta v. Union of India [1982] 2 SCR 365; Supreme
Court Advocates on Record v. Union of India (1993) 4
SCC 441 : [1993] 2 Suppl. SCR 659; Re: Special G
Reference 1 of 1998 AIR 1999 SC 1 : [1998] 2 Suppl.
SCR 400; Supreme Court Advocates-on-Record
Association and Anr. v. Union of India 2015 11 SCALE
1 – referred to.

H
322 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 1.9 There is difference in the manner of appointment of
permanent and additional Judges, and ad hoc judges in the High
Court. Thus, two scenarios of appointment of Judges arise under
Article 217 of the Constitution of India and the appointment has
to be by the President by warrant under his hand and seal (Article
224 refers to the appointment of Additional and acting Judges).
B
On the other hand, the appointment of a retired Judge as an ad
hoc Judge of the High Court under Article 224A of the Constitution
albeit forming part of the same Chapter V of the Constitution of
India begins with a non obstante clause and provides for the Chief
Justice of a High Court to request any person who has held the
C office of a Judge of that Court or any other High Court to sit and
act as a Judge of the High Court for that State. On the consent of
the President being granted, the Secretary in the Government of
India, Department of Justice is to inform the Chief Justice of the
High Court and to issue necessary notification in the Gazette of
India as per the MoP. The MoP has been framed under an
D
administrative discussion and cannot be said to be law declared
by this Court. It can always be varied. [Para 45][344-D-G]
1.10 In carrying out the said exercise, the Chief Justice of
the High Court would have to bestow his consideration on the
aspect as to who would be the suitable judge to be appointed as
E an ad-hoc judge and what is the time period for which the person
has to be so appointed. This in turn will depend on the data of
pendency of the different nature of cases, and the expertise of
the judge especially in the areas where there is a large volume of
pendency - as the objective is to clear the old cases which are
F stuck in the system. Such consideration of objective criteria
becomes necessary to have transparency in the system. [Para
46][344-G-H; 345-A-B]
1.11 On the aspect of allowances as admissible to an ad-
hoc judge to be determined by the President of India, it is trite to
G say that despite the voluntary nature of work no one would like
to accept allowances less than what are admissible to a sitting
judge. Thus, the same monetary benefits and privileges should
be payable/available to an ad-hoc judge as admissible to a judge
minus the pension. That can be the only methodology it is
considered appropriate to follow. [Para 48][345-C-D]
H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 323
(RETD.) v. UNION OF INDIA & ORS.

1.12 A Common theme of the various suggestions placed A
is that there is a definitive need for activating the provision. There
are differences of perception with respect to different aspects
such as, the trigger point to activate the provision, suggestion of
an embargo situation, the methodology of appointment, the role
of ad hoc Judges, age limit, tenure of appointment, etc. A common
B
need has been felt to give guidelines to facilitate some element
of uniformity in taking recourse to this dormant provision. It is
also a common ground, with which it is agreed, that while laying
down guidelines, a periodic review of this experiment would be
required and there may be occasions to suitably modify the
guidelines which are proposed to be laid down. Thus, it would C
not be appropriate to close the present proceedings but instead
a concept of continuing mandamus would be appropriate in the
present proceedings to work out the most effective method of
taking recourse to Article 224A of the Constitution. [Para
49][345-E-G]
D
1.13 The principle of continuing mandamus forms part of
the Constitutional jurisprudence and the term was used for the
first time in Vineet Narain v. Union of India’s case. The practice
of issuing continuing directions to ensure effective discharge of
duties was labelled as a “continuing mandamus”. Unlike a writ
remedy, a continuing mandamus is an innovative procedure not a E
substantive one which allows the Court an effective basis to
ensure that the fruits of a judgment can be enjoyed by the right-
bearers, and its realisation is not hindered by administrative and/
or political recalcitrance. It is a means devised to ensure that the
administration of justice translates into tangible benefits. [Para F
50][345-H; 346-A-B]
Vineet Narain v. Union of India (1998) 1 SCC 226 :
[1997] 6 Suppl. SCR 595 – relied on.
1.14 While emphasising that recourse to Article 224A is
the necessity of the day, and without inhibiting the expanse of G
the powers conferred on the Chief Justice of the High Court as
per the Constitution, it would be in the fitness of things to lay
down some guidelines for assistance of the Chief Justices of the
High Courts and to make the provision a ‘live letter’. It might be
noticed that it is a common case that the present proceedings H
324 SUPREME COURT REPORTS [2021] 3 S.C.R.

A are not adversarial but a method to make the provisions of Art.
224A into a practical and working arrangement. [Paras 51,
52][346-C-D, E]
2. Guidelines:
i. Trigger Point for activation:
B
The discretion of the Chief Justice of the High Court under
Article 224A is not constrained but as stated, some general
guidelines are required to be laid so that power conferred under
the said provision is exercised in a transparent manner. The
Trigger Point cannot be singular and there can be more than one
C eventuality where it arises-if the vacancies are more than 20%
of the sanctioned strength, the cases in a particular category
are pending for over five years, more than 10% of the backlog
of pending cases are over five years old, the percentage of the
rate of disposal is lower than the institution of the cases either
D in a particular subject matter or generally in the Court, even if
there are not many old cases pending, but depending on the
jurisdiction, a situation of mounting arrears is likely to arise if
the rate of disposal is consistently lower than the rate of filing
over a period of a year or more. [Para 53][346-F-H; 347-A-C]

E ii. Embargo Situation
Recourse to Article 224A is not an alternative to regular
appointments. It is clarified that if recommendations have not
been made for more than 20% of the regular vacancies then
the trigger for recourse to Article 224A would not arise. The
F data placed before this Court would suggest that there are
only ten High Courts having fewer than 20% vacancies as on
1.4.2021; seven High Courts having fewer than 10% vacancies
in permanent appointments but then there may be additional
Judges and there are cases which are in the pipeline. Thus,
the parameter adopted is that, at least, the recommendations
G should have been made leaving not more than 20% vacancies
in order to take recourse to Article 224A. [Paras 54,55][347-
C-E]

H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 325
(RETD.) v. UNION OF INDIA & ORS.

iii. Pre-recommendation process: A
Past performance of recommendees in both quality and
quantum of disposal of cases should be factored in for selection
as the objective is to clear the backlog. The Chief Justice should
prepare a panel of Judges and former Judges. This would be
in respect of Judges on the anvil of retirement and normally B
Judges who have recently retired preferably within a period
of one year. However, there can be situations where the Judge
may have retired earlier but his expertise is required in a
particular subject matter. There may also be a scenario where
the Judge(s) may prefer to t ake some tim e of f before
embarking upon a second innings albeit a short one. In the C
preparation of panel, in order to take consent and take into
account different factors, a personal interaction should be held
with the Judge concerned by the Chief Justice of the High
Court. [Para 55][347-F-H; 348-A]
iv. Methodology of Appointment: D

Para 24 of the MoP lays down a procedure for appointment
under Article 224A. It is not law laid down in this behalf under
Article 141 of the Constitution but as a first step it may be
more appropriate to follow this procedure laid down in para 24
of the MoP to see the progress made and impediments, if any. E
Since the Judges are already appointed to the post through a
warrant of appointment, the occasion to refer the matter to
the IB or other agencies would not arise in such a case, which
would itself shorten the time period. [Para 56][348-B-C]
v. Time to complete the process: F
The requirement that recommendations should be made
six months in advance by the Chief Justice of the High Court
emanates from the concept that the said period should be
required t o complete the process in case of a regular
appointment of a Judge under Article 217 or 224. In view of G
number of aspect s not required t o be adverted to f or
appointment under Article 224A, a period of about three
months should be sufficient to process a recommendation and,

H
326 SUPREME COURT REPORTS [2021] 3 S.C.R.

A thus, ideally a Chief Justice should start the process three
months in advance for such appointment. [Para 57][348-D-E]
vi. Tenure of Appointment:
The tenure for which an ad hoc Judge is appointed may
vary on the basis of the need but suffice to say that in order to
B give an element of certainty and looking to the purpose for
which they are appointed, generally the appointment should
be for a period between two to three years. [Para 58][348-F-
G]
vii. Number of Appointments:
C
At least, for the time being dependent on the strength of
the High Court and the problem faced by the Court, the number
of ad hoc Judges should be in the range of two to five in a
High Court. However, it is clarified that an ad hoc Judge(s)
would not be part of the sanctioned strength of Judges of the
D High Court to which they are appointed. [Para 59][348-G-H]
viii. Role of ad hoc Judges:
a. The primary objective being to deal with long pending
arrears, the said objective would be subserved by assigning more
than five year old cases to the ad hoc Judges so appointed.
E
However, this would not impinge upon the discretion of the Chief
Justice of the High Court, if exigencies so demand for any
particular subject matter even to deal with the cases less than
five years old, though the primary objective must be kept in mind.
It is further clarified that an ad hoc Judge would not be entrusted
F any administrative work, as such entrustment would defeat the
very purpose of appointment of ad hoc Judge(s), which is to clear
the backlog of old cases. [Para 60][349-A-C]
b. As regards the issue of constitution of Benches of an ad
hoc Judge and sitting Judge in matters to be heard by Division
G Bench and as to who would preside, 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. It is made
clear that because of the very nature of the profile and work to be

H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 327
(RETD.) v. UNION OF INDIA & ORS.

carried out by ad hoc Judges, it would not be permissible for an A
ad hoc Judge to perform any other legal work whether it be
advisory, of arbitration or appearance. [Para 61][349-C-D]
ix. Emoluments and Allowances:
a. The emoluments and allowances of an ad hoc Judge
should be at par with a permanent Judge of that Court at the B
relevant stage of time minus the pension. This is necessary to
maintain the dignity of the Judge as also in view of the fact that
all other legal work has been prohibited in terms of the aforesaid
guidelines. Emoluments to be paid would be a charge on the
Consolidated Fund of India consisting of salary and allowances. C
It is clarified that it is a misconceived notion that there would be
an additional burden on the State Government if some perquisites
are made available to ad hoc Judges by the State Government.
The trigger for appointment of ad hoc Judges is the very existence
of vacancies and had these vacancies been filled in, the State
Government would have incurred these expenses anyhow. In any D
case there is a limit placed on the number of ad hoc Judges and,
thus, the existence of vacancies actually results in the savings for
the State Government(s), which would otherwise be amount
expended as their allowances and perks. [Paras 62-63][349-E-
H; 350-A] E
b. It is made clear that when reference is made to allowance/
perks/perquisites all benefits as are admissible to the permanent/
additional Judge(s) would be given to the ad hoc Judge(s). For
clarity it is said that as far as housing accommodation is concerned,
either the rent-free accommodation should be made available or F
the housing allowance should be provided on the same terms
and conditions. For all practical purposes the ad hoc Judge would
receive the same emoluments, allowances and benefits as are
admissible to the permanent/additional Judges. The Second
Schedule, Part D of the Constitution of India stipulates the
emoluments and benefits that have to be conferred on the judges G
of the Supreme Court and of the High Courts. [Para 64][350-A-
C]
3. The first step is taken with the hope and aspiration that
all concerned would co-operate and retiring/retired Judges would
H
328 SUPREME COURT REPORTS [2021] 3 S.C.R.

A come forth and offer their services in the larger interest of the
Judiciary. The guidelines cannot be exhaustive and that too at
this stage. If problems arise, there will be endeavour resolve
them out. The apprehensions, if any, must be set aside to chart
this course and there will be a way forward. In view of the
requirements of a continuous mandamus to see how a beginning
B
has been made, the matter is listed after four months calling upon
the Ministry of Justice to file a report in respect of the progress
made. [Paras 65-66][350-D-E]
Krishan Gopal v. Shri Prakash Chandra & Ors. (1974)
1 SCC 128 : [1974] 2 SCR 206; Justice P Venugopal v.
C Union of India and Ors. (2003) 7 SCC 726 : [2003] 3
Suppl. SCR 286; Union of India v. Sankalchand
Himatlal Sheth (1977) 4 SCC 193 : [1978] 1 SCR 423;
Anna Mathew v. N. Kannadasan 2009 (1) LW 87 (Mad)
47); Ashok Tanwar and Anr. v. State of H.P. and Others
D (2005) 2 SCC 104 : [2004] 6 Suppl. SCR 1065; Indian
Society of Lawyers v. President of India (2011) 5 All
LJ 455 (FB); Supreme Court Advocate-on-Record
Association v. Union of India (1993) 4 SCC 441 : [1993]
2 Suppl. SCR 659; Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (NJAC case) (2016)
E 5 SCC 1 : [2015] 13 SCR 1 – referred to.
Constituent Assembly Debates Vol. VIII, 181; 124 th
report of the Law Commission; 79th Report of the Law
Commission of 1979; 188th Report of the Law
Commission of 2003; A. M. Singhvi, “Beating the
F Backlog Reforms in Administration of Justice in
India,” in S. Khurshid et. al., (eds.) Judicial Review-
Process, Powers, and Problems (Essays in Honour of
Upendra Baxi), (Cambridge University Press 2020),
page 53 – referred to.
G Case Law Reference
[1974] 2 SCR 206 referred to Para 15
[2003] 3 Suppl. SCR 286 referred to Para 16
[1978] 1 SCR 423 referred to Para 17
H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 329
(RETD.) v. UNION OF INDIA & ORS.

[2004] 6 Suppl. SCR 1065 referred to Para 18 A
[1993] 2 Suppl. SCR 659 referred to Para 30
[2015] 13 SCR 1 referred to Para 31
[1982] 2 SCR 365 referred to Para 44
[1993] 2 Suppl. SCR 659 referred to Para 44 B
[1998] 2 Suppl. SCR 400 referred to Para 44
(2015) 11 SCALE 1 referred to Para 44
[1997] 6 Suppl. SCR 595 relied on Para 50
C
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1236
of 2019.
(Under Article 32 of The Constitution of India)
Petitioner in person.
K.K. Venugopal, AG, R.S. Suri, ASG, Atmaram NS Nadkarni, D
Gaurav Pachnanda, Ravindra Shrivastava, Arvind P. Datar, Vijay
Hansaria, Ajit Kumar Sinha, R. Basant, Soumya Chakraborty, Vikas
Singh, Sr. Advs., B.K. Satija, Rajat Nair, Ms. Neela Kedar Gokhle,
Gurmeet Singh Makkar, D.L. Chidananda, Salvador Santosh Rebello,
Alok Kumar Pandey, Ashwin Kumar D.S, Ms. Preetika Dwivedi, E
Divyakant Lahoti, Parikshit Ahuja, Ms. Praveena Bisht, Ms. Madhur
Jhavar, Ms. Vindhya Mehra, Kartik Lahoti, Ms. Shivangi Malhotra,
Jaigopal Saboo, Romy Chacko, Shakthi Chand Jaidwal, Aniruddha
P. Mayee, Sahil Tagotra, Ms. Avni Sharma, V. N. Raghupathy, Md. Apzal
Ansari, Sharan Thakur, Mahesh Thakur, Siddhartha Thakur, Arjun Garg,
Ms. Shrutika Garg, Sibo Sankar Mishra, Ashok Kumar Singh, Rajiv Sinha, F
Niranjan Sahu, Umakant Mishra, Kunal Chatterji, Ms. Maitrayee
Banerjee, Pravar Veer Misra, Gopal Singh, Harpreet Singh Gupta, Vidur
Dwivedi, Mukul Kumar, Ms. Uttara Babbar, Manan Bansal, Ms. Shweta
Mohta, Apoorv Kurup, Ms. Nidhi Mittal, Abhimanyu Tewari, P.I. Jose,
Ms. Sneha Kalita, Prashant K. Sharma, Ms. Radhika Gautam, Ashwarya G
Sinha, Ms. Priyanka Sinha, Ms. Shubhi Sharma, T. G. Narayanan Nair,
Manu Krishnan, V. Balachandran, Siddharth Naidu for M/s KSN &
Co., Sanjai Kumar Pathak, Arvind Kumar Tripathi, Ms. Shashi Pathak,
Ms. Aruna Mathur, Avneesh Arputham for M/s Arputham Aruna And
Co, Vinay Arora, Naresh K. Sharma, Advs. for the Respondents.
H
330 SUPREME COURT REPORTS [2021] 3 S.C.R.

A The following Judgment of the Court was delivered
JUDGMENT
1. The intent of our order today is to activate a dormant provision
of the Constitution of India – Article 224A – for the appointment of ad
hoc Judges to deal with the unprecedented situation arising from the
B backlog of cases pending in the High Courts, which has now crossed the
figure of 57 lakh coupled with the consistent ratio of vacancies of almost
40 per cent. Any Constitution has to be dynamic, and thus, even if the
intent behind including the provision (as it appears from the Constituent
Assembly Debates) was slightly different, nothing prevents it from being
C utilised to subserve an endeavour to solve an existing problem. For as it
is always said, ‘change is the only constant’.
2. India was fortunate to have some of the best minds work on
the framing of our Constitution as members of our Constituent Assembly.
The Indian Constitution is an elaborate one, taking cues from the
D experience of various democracies. One of the essential aspects of our
Constitution has been the separation of powers between the Judiciary,
Executive, and Legislature.
3. Chapter V of Part VI of the Constitution of India commencing
from Article 214 upto Article 231 relates to the High Courts in the states.
E Article 217 provides for the appointment and conditions of the office of
a Judge of the High Court, wherein the current age of retirement is 62
years. We may say that broadly, it is amongst the youngest ages of
retirement of judges of the apex Court of a state in comparison with
other democracies of the world.

F 4. Article 224 deals with the appointment of additional and acting
judges. The objective as set out in the Article is to take care of any
temporary increase in business of the High Court, or by reason of arrears
of work therein. The appointment of an additional judge duly qualified to
be the judge of a High Court has to be for a period not exceeding two
years, or as the President may specify. The ground reality however,
G remains that while determining the strength of different High Courts, the
practice that has been adopted is that about 25% of the strength consists
of additional Judges.
5. In the present case, we are concerned with Article 224A which
reads as under:
H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 331
(RETD.) v. UNION OF INDIA & ORS.

“224A. Appointment of retired Judges at sittings of High Courts- A
Notwithstanding anything in this Chapter, the Chief Justice of a
High Court for any State, may with the previous consent of the
President, request any person who has held the office of a Judge
of that Court or of any other High Court to sit and act as a Judge
of the High Court for that State, and every such person so requested B
shall, while so sitting and acting, be entitled to such allowances as
the President may by order determine and have all the jurisdiction,
powers, and privileges of, but shall not otherwise be deemed to
be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any C
such person as aforesaid to sit and act as a Judge of that High
Court unless he consents so to do.”
6. The aforesaid Article begins with a non-obstante clause and
was placed so that a request can be made to any person who has held
the office of a Judge of that Court or of any other High Court, to sit and D
act as a judge of the High Court for the state. The second aspect is that
while sitting and acting, such a judge would be entitled to such allowances
as the President may by order determine and have all the jurisdiction,
powers, and privileges of the High Court judge; but for all other purposes
shall not be deemed to be a High Court judge. The proviso stipulates that
consent has to be obtained from the judge concerned. E

7. It is the say of the petitioner before us in this public interest
litigation that a large number of vacancies of High Court judges coupled
with mounting arrears is a scenario which requires urgent attention and
one of the modes to deal with both these aspects is resorting to Article
224A of the Constitution of India. F
The Historical Perspective:
8. Article 224A was numbered as Article 200 in the Draft
Constitution and discussed by the Constituent Assembly on 7th June
1949. The debate focused on the purpose and duration of the appointment
G
of retired High Court judges. Three other specific issues were discussed:
1) whether a retired judge must consent to his appointment;
2) whether a retired judge draws salary after his appointment as
an ad hoc judge;
H
332 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 3) whether the appointment of ad hoc judges was to be made
with the concurrence of the President.
9. Some part of the debates indicate that the retired judge was to
be invited back only for their expertise and experience to decide cases
that were particularly difficult or important; and that it may not be
B advisable to call retired judges and asked them to clear off the arrears
pending before the High Court. On the other hand, Dr. B.R. Ambedkar
had clarified that the intent behind the appointment of ad hoc judges was
as an alternative to the appointment of temporary or additional judges,
which suggestion had not been accepted by the Constituent Assembly.
Thus, ad hoc judges were not intended to be appointed for an indefinite
C length of time. In his words :
“It seems to me that if you are not going to have any temporary or
additional judges you must make some kind of provision for the
disposal of certain business, for which it may not be feasible to
appoint a temporary judge in time to discharge the duties of a
D High Court Judge with respect to such matters.”1
10. The aforesaid provision, it was emphasized by Dr. Ambedkar,
was borrowed (word for word) from Section 8 of the Supreme Court of
Judicature (Consolidation) Act, 1925 in the UK, and similar provisions in
America. It was explained that the proviso was inserted to avoid a situation
E where the refusal of a retired judge to accept the invitation could be
treated as remiss of his conduct.
11. Another important aspect as emerges from the debates, was
that it was the view of Dr. Ambedkar himself that the matter of salary
and benefits would be governed by the rules governing pension. Thus,
F all benefits would be admissible minus the pension; though the precise
definition of “privileges” of an ad hoc judge was left to the Parliament to
decide. The aspect of concurrence of the President was also debated
and introduced to bring greater transparency in the process.
12. The aforesaid provision for appointment of ad hoc judges was
G removed by the Constitution (7th Amendment) Act, 1956. The objective
of that Act clarifies that this was done as the provision for recalling
retired judges for a short period had been found to be neither adequate
nor satisfactory. It was sought to be replaced by the current Article 224,
1
Speech by Dr. B.R. Ambedkar on 7 th June 1949, Constituent Assembly Debates, Vol.
H VIII, ¶181.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 333
(RETD.) v. UNION OF INDIA & ORS.

making provisions for appointment of additional judges to clear off arrears A
and for the appointment of acting judges in temporary vacancies.
13. There appears to have been a legislative re-think as the
provision for the appointment of ad hoc judges was reintroduced vide
Article 224A by the Constitution (15th Amendment) Act, 1963. The Lok
Sabha debates did not specifically refer to the philosophy behind the re- B
introduction, but this can be extrapolated from the purpose behind
introducing ad hoc appointments in the Supreme Court of India. The
debates do reflect the two points of view, i.e., a worry about a possible
“demon of patronage” and on the other hand views being expressed that
it was possibly better to call back a retired judge instead of appointing a
member of the Bar for a few months. The amendments seeking to restrict C
the term of ad-hoc judges to three months was however, negated, while
inserting this provision in the Constitution.
Judicial Views :
14. Now we turn to the aspects arising from the aforesaid provision D
being debated in certain judicial precedents.
15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.2 - a
Constitution Bench of this Court (five judges) ruled on the issue of whether
a person sitting and acting as a Judge of the High Court under Article
224A of the Constitution has the jurisdiction to try an election petition E
under Section 80-A of the Representation of the People Act, 1951. Debate
arose in the context of a judge of the Madhya Pradesh High Court who
was sitting and acting as a judge of that Court under Article 224A of the
Constitution, and his appointment was to last for a period of one year or
till the disposal of elections petitions entrusted to him, whichever was
earlier. In that context it was observed that if a person appointed under F
Article 224A of the Constitution was not considered to be a judge of the
High Court for the purpose of jurisdiction, powers and privileges, the
question of appointing such a person would never arise. The provision
could not thus be rendered a dead letter. It was clarified that the effect
of the provision would create a deeming fiction and the Court observed: G
“15. (…) The person requested while so sitting and acting shall
have all the jurisdiction, powers and privileges of a judge of the
High Court. Such a person shall not otherwise be deemed to be a

2
(1974) 1 SCC 128. H
334 SUPREME COURT REPORTS [2021] 3 S.C.R.

A judge of that Court. The words “while so sitting, and acting” show
that the person requested not merely has the Jurisdiction, powers
and privileges of a Judge of the, High Court, he also sits and acts
as a Judge of that Court. Question then arises as to what is the
significance of the concluding words “but shall not otherwise be
deemed to be a Judge of that Court”. These words, in our opinion,
B
indicate that in matters not relating to jurisdiction, powers and
privileges the person so requested shall not be deemed to be a
Judge of that Court. The dictionary meaning of the word
“otherwise” is “in other ways”, “in other circumstances”, “in other
respects”. The word “otherwise” would, therefore, point to the
C conclusion that for the purpose of jurisdiction, powers and privileges
the person requested shall be a Judge of the concerned High Court
and for purposes other than those of jurisdiction, powers and
privileges, the person requested shall not be deemed to be a Judge
of that Court. It would, for example, be not permissible to transfer
him under Article 222 of the Constitution. The use of the word
D
“deemed” shows that the person who sits and acts as a Judge of
the High Court under Article 224-A is a Judge of the said High
Court but by a legal fiction he is not to be considered to be a
Judge of the High Court for purposes other than those relating to
jurisdiction, powers and privileges. (…)”
E 16. On the issue of entitlement of allowances of such an ad hoc
judge, in Justice P Venugopal vs. Union of India and Ors.,3 it was
opined that an ad hoc judge does not become a part of the High Court
and thus there is no question of computing his pension for the period he
is appointed as an ad hoc judge. Thus, the ad hoc judge would not be
F entitled to further pensionary benefits after he demits the Constitutional
office that he holds in terms of Article 217.
17. It may also be appropriate to turn to some of the opinions
expressed on the requirement of consent of a retired Judge. In Union of
India vs. Sankalchand Himatlal Sheth,4 it was observed that the
G reason for insisting on consent was that a retired Judge cannot be
compelled to work as an ad hoc judge against his consent. This is because
he ceases to be a judge of the High Court on demitting office at the
prescribed age and is not bound by the conditions of service.
3
(2003) 7 SCC 726.
4
H (1977) 4 SCC 193.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 335
(RETD.) v. UNION OF INDIA & ORS.

18. It is appropriate to refer to more opinions albeit of the High A
Court to know how this particular aspect had been dealt with in the
opinion of the High Court. In Anna Mathew vs. N. Kannadasan though
the issue was not directly in question, the aspect of appointment of an ad
hoc judge under Article 224A of the Constitution had been adverted to. 5
The context of the view on the expression “ad hoc” is present only in
B
Article 224A and Article 127. In that context, a reference had been
made to the Constitution Bench judgment (five judges) of this Court in
Ashok Tanwar and Anr. vs. State of H.P. and Others.6 Here, there
are observations to the effect that a consultation with the Collegium
would not be necessary inasmuch as the Chief Justice is required to
recommend the name of a sitting or a retired judge. However, that was C
a case dealing with appointments to the Consumer Disputes Redressal
Commission and in that context, consultation with the Collegium was
thought not necessary. However, if we turn to the judgment in Ashok
Tanwar’s case (supra) we find there was actually no real discussion
on Article 224A. What was in question was whether Section 16 of the
D
Consumer Protection Act, 1986, (which requires the State to appoint a
person in consultation with the Chief Justice of the State) a consultation
with acting Chief Justice was sufficient compliance of the case.
19. The last judicial view we seek to refer to is of the Full Bench
of the High Court of the Judicature at Allahabad in Indian Society of
Lawyers vs. President of India which elaborately dealt with the E
interpretation of Article 224A of the Constitution.7 It was observed that
an ad hoc judge does not fall within Article 216, and that he is not a judge
of the High Court so sitting and acting. The President does not appoint
him, and only gives his consent to the Chief Justice to request a former
judge to sit and act as a judge of the High Court. Thus, the process of F
appointment under Clause (1) of Article 217 does not apply to him. This
is also the reason why while dealing with the aspect of monetary
emoluments of an ad hoc judge, it has been stated that the former judge
will be entitled to such allowances as the President may by order
determine though he shall have all the jurisdiction, powers, and privileges
but will not otherwise be deemed to be a judge of that High Court. G

5
2009 (1) LW 87 (Mad) (¶ 47).
6
(2005) 2 SCC 104
7
(2011) 5 All LJ 455 (FB). H
336 SUPREME COURT REPORTS [2021] 3 S.C.R.

A The Challenge Before the Judiciary
20. It is trite to say that we have a docket explosion in our country
and that it is difficult for adjudication to take place within a reasonable
period of time. This crisis situation must be tackled. Some innovation is
always the rule of the game. In the present context, maybe a slightly
B different view has to be taken in respect of the avowed purpose of
Article 224A providing for ad hoc judges. We say so as we are faced
with the ground reality of almost 40% vacancies remaining in the regular
appointments (both permanent and additional judges) over the last two
years, as we have already mentioned. A number of vacancies arising
C every year are barely filled in by fresh appointments. Thus, it remains an
unfulfilled challenge to bring the appointment process to such numbers
as would be able to cover the vacancies existing and arising. Without
endeavouring to blame anyone, a ground reality remains that there are
manifold reasons for the same.

D 21. The present system of appointments as envisaged by the
Constitution and as elucidated in the Collegium system makes it clear
that the first step is a recommendation from that High Court by a collegium
of the three senior-most judges presided over by the Chief Justice of the
High Court. This process in turn requires wide consultation by the Chief
Justice of the High Court to identify the requisite talent, so as to make
E the recommendations. Contrary to some portrayed beliefs as if this is an
extremely subjective system, every Chief Justice is actually required to
solicit names from different sources whether it be sitting judges, retired
judges, or prominent members of the Bar. It is from this pool of talent
that he selects, after a discussion before the collegium, the most suitable
F candidates. It is thus of utmost importance that the flow of
recommendations continues for the appointment process to work
successfully. The vacancies existing and arising are always known, as a
judge demits office in the High Court on his 62nd birthday. The only
exception can be an unforeseen eventuality or an elevation to the Supreme
Court of India. Thus, every endeavour has to be made to see that the
G recommendations are made well in advance while maintaining a balance
between recommendations from the Bar and the subordinate judiciary,
about six months in advance as per norms which were thought to be the
appropriate time period within which the whole process of appointment
ought to be concluded. This aspect has been emphasized by us in another
H connected matter, i.e., TP(C) No. 2419/2019.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 337
(RETD.) v. UNION OF INDIA & ORS.

22. We may also note that on the basis of talent available; A
considering that the age profile for elevation from the Bar is between 45
to 55 years, there may be situations where at one go all recommendations
against vacancies may not be possible to be made. However nothing
prohibits - or rather the exigencies of the appointment process requires
- recommendations to be periodically made without unnecessarily waiting
B
for the outcome of the first set of recommendations. If this continuing
pipeline operates and even if some recommendations fall by the wayside,
over a reasonable period of time the vacancies can be filled up. The
current situation of vacancies, especially in some of the larger courts
with very few recommendations in the pipeline seems to be the genesis
of this problem. C

23. The data placed before us, as drawn from the National Judicial
Data Grid (“NJDG”) shows that five (5) High Courts alone are responsible
for 54% of the pendency of over 57,51,312 cases – the High Courts of
Allahabad, Punjab & Haryana, Madras, Bombay, and Rajasthan. The
Madras High Court has among the highest arrears in the country of 5.8 D
lakh cases despite having fewer vacancies than most other High Courts
(i.e., 7%). This does not take away from the requirement of appointing
ad hoc Judges but supports the view that even if the existing vacancies
are few, a situation may arise requiring the expertise of experienced
Judges to be appointed as ad hoc Judges. On the other hand, Calcutta E
High Court has one of the highest vacancies of regular appointments
(44%) but less than half the arrears as compared to Madras (2.7 lakh
cases). In such a scenario, it is apparently the absence of strength of the
Judges which may be responsible for creating the arrears and, thus,
giving rise to another scenario for appointment of ad hoc Judges. In
Punjab & Haryana High Court, which has a vacancy problem, the arrears F
have more than doubled over the last six years. The NJDG data shows
that 56.4% pending cases were filed within the past five years whereas
40% of the pending cases were filed between 5 to 20 years ago. The
primary purpose of appointing ad hoc Judges is to deal with the latter
group of cases that have been pending for over five years. The table G
below, put on record by Senior Advocate Mr. Datar shows the percentage
break-up of cases pending before High Courts for different periods of
time as on 04.04.2021:

H
338 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Particulars Civil % Criminal % Total %
0 to 1 years 622267 15.09 333345 20.49 955612 16.62
1 to 3 years 1054504 25.57 427302 26.27 1481806 25.76
3 to 5 years 676249 16.4 221226 13.6 897475 15.6
5 to 10 years 870536 21.11 296231 18.21 1166767 20.29
10 to 20 years 716419 17.37 289887 17.82 1006306 17.5
20 to 30 years 109517 2.63 41916 2.63 151433 2.63
Above 30 75047 1.82 16866 1.04 91913 1.6
years
B
24. We may only emphasize that one of the most important
administrative functions of the Chief Justice of the High Court is to
identify suitable candidates for elevation as judges of the High Court
and make recommendations in turn. The pipeline of recommendation of
C Judges has to be kept flowing so as to cover vacancies.
25. Once the recommendation is made, opinions of State
Governments are solicited as also the input from the Intelligence Bureau
(“IB”). The recommendations are then processed by the Central
Government in all manners, before they are put up to the collegium of
D the Supreme Court of India. This is another area of some concern as
there have been many cases which have remained pending for long
periods of time - though in view of certain queries posed in these judicial
proceedings, the situation has now improved. We may only say that in
normal circumstances, the total time period before names are forwarded
to the Supreme Court collegium should not exceed four months after the
E recommendations are made by the collegium of the High Court.
26. The Supreme Court collegium, which is the first three judges,
thereafter bestows its consideration on these names after obtaining the
opinions of the consultee judges. Those names which find approval of
the collegium are then recommended for appointment to the Union of
F India. At that stage, the Government either proceeds to appoint the judges
or it may have some reservations, in which case it would be within their
right to return the recommendations with the reservations they have
over the appointment. On reconsideration, if the recommendation is
reiterated, in terms of the prevalent legal position, the appointment has
G to be made. The delays in this is a matter of concern as the
recommendation of the collegium should not remain pending for a long
period of time. The aforesaid process should be completed at the earliest.
We may note that in some of the courts it is a challenge to persuade
competent and senior lawyers who may have large practices to accept
the position of the judge, and the pendency of their names for a long
H period of time does little to encourage them.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 339
(RETD.) v. UNION OF INDIA & ORS.

27. The fact remains that the aforesaid process has not resulted A
in filling up of vacancies for many years. It is not as if the vacant posts
are a small fraction, as we have noticed that they have been hovering
around the figure of 40% vacancies.
28. Having sketched out the aforesaid process, two questions arise :
1) how to make this process more efficacious; and B

2) till the vacancies are filled up, what is it that can support a
quicker adjudicatory process?
29. The latter undoubtedly requires more number of judges and
thus the present debate has arisen for the purposes of utilization of the C
existing Article 224A of the Constitution to appoint ad hoc judges in the
context of a large number of existing vacancies and pending arrears.
Memorandum of Procedure:
30. The Union of India vide additional affidavit dated 13.04.2021
had placed before us a Memorandum of Procedure (“MoP”), which D
was prepared in the year 1998 in pursuance to the judgment of the
Supreme Court in Supreme Court Advocate-on-Record Association
v. Union of India8 (Second Judges case) read with the advisory opinion
rendered in Special Reference No.1/19989 for “attendance of retired
Judges at sittings of High Courts.” It is the say of the Union of India that
E
the appointment of retired Judges under Article 224A should be a
collaborative process between the Executive and the Judiciary and the
procedure prescribed in para 24 may be followed till it is amended. The
relevant paragraph of the MoP reads as under:
“24. Under Article 224A of the Constitution, the Chief Justice of
F
a High Court may at any time, with the previous consent of the
President, request any person who has held the office of a Judge
of that court or of any other High Court to sit and act as a Judge
of the High Court of that State. Whenever, the necessity for such
an appointment arises, the Chief Justice will after obtaining the
consent of the person concerned, communicate to the Chief G
Minister of the State the name of the retired Judge and the period
for which he will be required to sit and act as Judge of the High
Court. The Chief Minister will, after consultation with the Governor,
8
(1993) 4 SCC 441
9
(1998) 7 SCC 739 H
340 SUPREME COURT REPORTS [2021] 3 S.C.R.

A forward his recommendation to the Union Minister of Law, Justice
and Company Affairs. The Union Minister of Law, Justice and
Company Affairs would then consult the Chief Justice of India in
accordance with the prescribed procedure. On receipt of CJI’s
advice, the same would be put up to the Prime Minister, who will
then advise the President as to the person to be appointed to it
B
and act as a Judge of the High Court. As soon as the President
gives his consent to the appointment, the Secretary to the
Government of India in the Department of Justice will inform the
Chief Justice of the High Court and the Chief Minister(s) and will
issue the necessary notification in the Gazette of India.”
C 31. We may notice that the subsequent endeavour to introduce
the National Judicial Appointments Commission (‘NJAC’) through a
constitutional amendment could not withstand the constitutional challenge
in Supreme Court Advocates-on-Record Association & Anr. v. Union
of India (NJAC case)10. In this, it was observed that the process of
D amendment of the MoP could be finalised by the Executive in consultation
with the Chief Justice of India. In this behalf, the final view of the Judiciary
was sent after discussion and there is no change in the aforesaid. The
MoP has been circulated to the Chief Justices of the High Courts.
Law Commission Reports
E 32. The path we seek to traverse is supported by the Law
Commission Reports. In fact, the 124th report of the Law Commission
delivered in 1988 dealt with the aspect that a fresh look was required for
High Court arrears. In that context, it has been recognized that retired
judges have several decades of adjudicatory experience, and their talents
F could be utilized to dispose of mounting arrears. On account of their
experience, they would be quick in disposing cases and being unburdened
with administrative or admission work, they could spend their entire time
hearing old matters. Thus, the appointment of retired judges as ad-hoc
judges was seen as a part of a “multipronged attack” on arrears, and
was strongly recommended.
G
33. This is not a first time that this aspect was noted. The
79th Report of the Law Commission of 1979 had suggested recourse to
this Article to sub-serve the said objective. We may, however, notice
that in 245th Report of 2014, some concerns were expressed about this

H 10
(2016) 5 SCC 1
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 341
(RETD.) v. UNION OF INDIA & ORS.

process on account of the appointment being for a short period and the A
accountability in the functioning and performance of ad-hoc judges.
34. We may notice that in the 188th Report of the Law Commission
of 2003, that in the interest of clearing arrears in the High Court in
various types of cases, including criminal matters, it was felt that it was
the need of the hour to make appointments under Article 224A of the B
Constitution. The concern was to bring the arrears within manageable
proportions.
Some other views
35. In the recently published treatise, a view had been expressed
that one great advantage of appointing ad-hoc judges under Article 224- C
A is that it provides for a ready-made pool of known judicial talent which
can be relied upon to be competent, clean and efficient. This can be an
effective weapon to deal with the disposal of forgotten and pending
cases, more so in the context of inordinate delay in fresh judicial
appointments.11 D
nd rd
36. In the Chief Justices’ Conference held on 22 and 23 April
2016, a resolution was adopted dealing with filling up of vacancies in
High Courts and to address the problem of arrears in criminal and civil
cases de hors Article 224A where it was perceived to be a course to
follow. The Resolution states as under: E
“Resolved further that, keeping in view the large pendency of
civil and criminal cases, especially criminal appeals where convicts
are in jail and having due regard the recommendation made by
the 17th Law Commission of India in 2003, the Chief Justices will
actively have regard to the provisions of Article 224A of the F
Constitution as a source for enhancing the strength of Judges to
deal with the backlog of cases for a period of two years or the
age of sixty five years, whichever is later until a five plus zero
pendency is achieved.”
Article 224A earlier recourse:
G
37. We have already noticed that Article 224A has largely been a
dormant provision with only three recorded instances of its invocation.
11
A. M. Singhvi, “Beating the Backlog Reforms in Administration of Justice in India,”
in S. Khurshid et. al., (eds.) Judicial Review- Process, Powers, and Problems (Essays
in Honour of Upendra Baxi), (Cambridge University Press 2020), page 53. H
342 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Justice Suraj Bhan of the Madhya Pradesh High Court was appointed
as an ad hoc Judge on 23.11.1972 after he had demitted office on 2.2.1971.
His appointment was for a period of one year or till the disposal of
election petitions entrusted to him, whichever was earlier. Thus, it was
with a specific purpose.
B 38. Justice P. Venugopal of the Madras High Court was a Judge
for a short period of less than three years and close to his retirement, he
was appointed to a Commission of Inquiry to inquire into certain incidents
that took place in Coimbatore town on 23.7.1981 and again appointed to
a one-man commission to inquire into incidents of communal riots by
order dated 22.3.1982. He was appointed to the post of ad hoc Judge in
C the year 1982 and yet again his term was renewed for a period of one
year from 19.8.1983.
39. Most recently in the year 2007, Justice O.P. Srivastava was
appointed as an ad hoc Judge in the Allahabad High Court. He was one
of the Members of the Special Bench constituted for hearing of the
D Ayodhya matter with the avowed object of facilitating continued and
continuous hearing of the matter.
The Challenge Ahead:
40. We have little doubt that challenge of mounting arrears and
E existing vacancies requires recourse to Article 224A of the Constitution
to appoint ad-hoc judges which is a ready pool of talent, (of course
subject to their concurrence) as a methodology especially for clearing
the old cases. The existing strength of permanent and additional judges
can be utilized for current and not so old cases. The ad-hoc judges are
absolved even from the administrative responsibilities. They can
F concentrate on old cases which are stuck in the system and may require
greater experience. For example, it is often perceived that a Regular
Second Appeal is an area of concern and the more experienced judges
are able to attend to this area with more promptness.
41. We see no reason why there should be an unending debate of
G taking recourse to Article 224A when such a provision exists in the
Constitution. It should not be made a dead letter, more so when the need
is so pressing.
42. We are unable to accept the plea of the learned Attorney
General that though the Government of India may not have any in principle
H opposition to the aforesaid, first the existing vacancies should be filled
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 343
(RETD.) v. UNION OF INDIA & ORS.

in. In our view, this would be a self-defeating argument because the A
very reason why at present Article 224A has been resorted to is non-
filling up of vacancies and the mounting arrears. We may, however,
hasten to add that the objective is not to appoint ad-hoc judges instead of
judges to be appointed to the regular strength of the High Court
(apprehension expressed by Mr. Vikas Singh, Senior Counsel, President
B
of the Supreme Court Bar Association). The very provision makes it
clear that it does not in any way constrain or limit the regular appointment
process and consent of the retired judge is sought to sit and act as a
judge of the High Court. One may say that this largely a transitory
methodology till all the appointment processes are in place, though that
may not be the only reason to take recourse to the aforesaid Article. C
43. We also have no doubt that we would not like to encourage an
environment where Article 224A is sought as panacea for inaction in
making recommendations to the regular appointments. In order to prevent
such a situation, we are of the view that certain checks and balances
must be provided so that Article 224A can be resorted to only on the D
process having being initiated for filling up of the regular vacancies and
awaiting their appointments. We are thus of the view that there should
not be more than 20% of the vacancies for which no recommendation
has been made for this Article to be resorted to. We put this figure not
out of the blue but looking to the entire scenario where sometimes it may
be difficult to find the requisite talent at a particular stage which may E
have to await some time period. However, certainly, it cannot be
countenanced that no or very few recommendations are made for a
large number of vacancies by resorting to Article 224A.
44. We may have to turn to the aspect of the process to be followed
for making present appointments. The Constitution of India did not provide F
for a collegium system. This is an aspect which emerged from the cases
of SP Gupta v. Union of India,12 Supreme Court Advocates on Record
v. Union of India,13 and in Re: Special Reference 1 of 199814 and its
modified forms has remained in existence since then. The endeavour of
the Government to bring in the National Judicial Appointments Commission G
did not pass the muster of the constitutional mandate and was struck
down in Supreme Court Advocates-on-Record Association and Anr.

12
(1982) 2 SCR 365.
13
(1993) 4 SCC 441.
14
AIR 1999 SC 1. H
344 SUPREME COURT REPORTS [2021] 3 S.C.R.

A v. Union of India.15 Thus, the collegium of the Supreme Court has an
important role to play in the appointment of judges of the High Court. In
the aforesaid conspectus, the exercise by the Chief Justice of the High
Court, the authority vested under Article 224A of the Constitution would
require a prior consent from the judge concerned, and that
recommendation in turn has to be routed through the collegium of the
B
Supreme Court. Of course, the previous consent of the President of
India (as advised) is necessary - but looking to the very nature of this
appointment, which is of a retired judge who for his judicial appointment
has gone through the complete process, time period of maximum three
months is more than sufficient to carry the process through all stages.
C This in turn would be facilitated if the Chief Justice of the High Court
takes the initial steps at least three months in advance so that there is no
unnecessary delay in this regard.
45. We may add here that we are quite conscious of the difference
in the manner of appointment of permanent and additional Judges, and
D ad hoc judges in the High Court. Thus, two scenarios of appointment of
Judges arise under Article 217 of the Constitution of India and the
appointment has to be by the President by warrant under his hand and
seal (Article 224 refers to the appointment of Additional and acting
Judges). On the other hand, the appointment of a retired Judge as an ad
hoc Judge of the High Court under Article 224A of the Constitution
E albeit forming part of the same Chapter V of the Constitution of India
begins with a non obstante clause and provides for the Chief Justice of
a High Court to request any person who has held the office of a Judge
of that Court or any other High Court to sit and act as a Judge of the
High Court for that State. On the consent of the President being granted,
F the Secretary in the Government of India, Department of Justice is to
inform the Chief Justice of the High Court and to issue necessary
notification in the Gazette of India as per the MoP. For clarity we may
add that while the judicial pronouncements of the Supreme Court are
law declared by this Court under Article 141 of the Constitution of India,
the MoP has been framed under an administrative discussion and cannot
G be said to be law declared by this Court. It can always be varied.
46. In carrying out the aforesaid exercise, the Chief Justice of the
High Court would have to bestow his consideration on the aspect as to

15
H 2015 11 SCALE 1.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 345
(RETD.) v. UNION OF INDIA & ORS.

who would be the suitable judge to be appointed as an ad-hoc judge and A
what is the time period for which the person has to be so appointed.
This in turn will depend on the data of pendency of the different nature
of cases, and the expertise of the judge especially in the areas where
there is a large volume of pendency - as the objective is to clear the old
cases which are stuck in the system. Such consideration of objective
B
criteria becomes necessary to have transparency in the system.
47. In the aforesaid context, we called upon various senior counsels
assisting this Court to look into this matter and Mr. Arvind Datar, learned
senior counsel to coordinate it so that we can have common suggestions
before us to assist us in formulating the modalities for recourse to Article
224A. C

48. On the aspect of allowances as admissible to an ad-hoc judge
to be determined by the President of India, it is trite to say that despite
the voluntary nature of work no one would like to accept allowances
less than what are admissible to a sitting judge. Thus, we are of the view
that the same monetary benefits and privileges should be payable/available D
to an ad-hoc judge as admissible to a judge minus the pension. That can
be the only methodology we consider appropriate to follow.
49. A Common theme of the various suggestions placed before us
- whether by Mr. Datar, the petitioners or other counsels - is that there is
a definitive need for activating the provision. There are differences of E
perception with respect to different aspects such as, the trigger point to
activate the provision, suggestion of an embargo situation, the methodology
of appointment, the role of ad hoc Judges, age limit, tenure of appointment,
etc. We have, thus, heard learned counsels on these various aspects. A
common need has been felt to give guidelines to facilitate some element F
of uniformity in taking recourse tothis dormant provision. It is also a
common ground, with which we agree, that while laying down guidelines,
a periodic review of this experiment will be required and there may be
occasions to suitably modify the guidelines which we propose to lay
down. Thus, it would not be appropriate to close the present proceedings
but instead a concept of continuing mandamus would be appropriate in G
the present proceedings to work out the most effective method of taking
recourse to Article 224A of the Constitution.
50. The principle of continuing mandamus forms part of our
Constitutional jurisprudence and the term was used for the first time in
H
346 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Vineet Narain v. Union of India16. The practice of issuing continuing
directions to ensure effective discharge of duties was labelled as a
“continuing mandamus”. We may note that unlike a writ remedy, a
continuing mandamus is an innovative procedure not a substantive one
which allows the Court an effective basis to ensure that the fruits of a
judgment can be enjoyed by the right-bearers, and its realisation is not
B
hindered by administrative and/or political recalcitrance. It is a means
devised to ensure that the administration of justice translates into tangible
benefits.
51. We have given deep thought to the slightly different
perspectives placed before us by way of affidavits by the different High
C Courts and Union of India. While emphasising that recourse to Article
224A is the necessity of the day, and without inhibiting the expanse of
the powers conferred on the Chief Justice of the High Court as per the
Constitution, it would be in the fitness of things to lay down some guidelines
for assistance of the Chief Justices of the High Courts and to make the
D provision a ‘live letter’.
52. We have, in this behalf, considered the various aspects touched
upon in the additional affidavit of the Union of India dated 13.4.2021. In
fact, the response note of Mr. Datar is based on these different parameters
and is intended to facilitate a cogent flow to the guidelines sought from
E us. We may notice that it is a common case that the present proceedings
are not adversarial but a method to make the provisions of Article 224A
into a practical and working arrangement. We now proceed to issue the
guidelines.
Guidelines:
F i. Trigger Point for activation:
53. The discretion of the Chief Justice of the High Court under
Article 224A is not constrained but as stated, some general guidelines
are required to be laid so that power conferred under the said provision
is exercised in a transparent manner. The Trigger Point cannot be singular
G and there can be more than one eventuality where the it arises –
a. If the vacancies are more than 20% of the sanctioned strength.
b. The cases in a particular category are pending for over five
years.
H 16
(1998) 1 SCC 226
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 347
(RETD.) v. UNION OF INDIA & ORS.

c. More than 10% of the backlog of pending cases are over five A
years old.
d. The percentage of the rate of disposal is lower than the
institution of the cases either in a particular subject matter or
generally in the Court.
e. Even if there are not many old cases pending, but depending B
on the jurisdiction, a situation of mounting arrears is likely to
arise if the rate of disposal is consistently lower than the rate
of filing over a period of a year or more.
ii. Embargo Situtation:
C
54. We have already observed that the recourse to Article 224A
is not an alternative to regular appointments. In order to emphasise this
aspect, we clarify that if recommendations have not been made for more
than 20% of the regular vacancies then the trigger for recourse to Article
224A would not arise.
D
55. In this behalf we may take note of the data placed before us
which would suggest that there are only ten High Courts having fewer
than 20% vacancies as on 1.4.2021; seven High Courts having fewer
than 10% vacancies in permanent appointments but then there may be
additional Judges and there are cases which are in the pipeline. Thus,
the parameter we have adopted is that, at least, the recommendations E
should have been made leaving not more than 20% vacancies in order to
take recourse to Article 224A.
iii. Pre-recommendation process:
a. Past performance of recommendees in both quality and
F
quantum of disposal of cases should be factored in for selection
as the objective is to clear the backlog.
b. The Chief Justice should prepare a panel of Judges and former
Judges. Naturally this will be in respect of Judges on the anvil
of retirement and normally Judges who have recently retired
preferably within a period of one year. However, there can be G
situations where the Judge may have retired earlier but his
expertise is required in a particular subject matter. There may
also be a scenario where the Judge(s) may prefer to take some
time off before embarking upon a second innings albeit a short
one. In the preparation of panel, in order to take consent and H
348 SUPREME COURT REPORTS [2021] 3 S.C.R.

A take into account different factors, a personal interaction should
be held with the Judge concerned by the Chief Justice of the
High Court.
iv. Methodology of Appointment:
56. We have already noticed that para 24 of the MoP lays down a
B procedure for appointment under Article 224A of the Constitution. We
have also noticed that it is not law laid down in this behalf under Article
141 of the Constitution but as a first step it may be more appropriate to
follow this procedure laid down in para 24 of the MoP to see the progress
made and impediments, if any. We may, however notice that since the
C Judges are already appointed to the post through a warrant of appointment,
the occasion to refer the matter to the IB or other agencies would not
arise in such a case, which would itself shorten the time period.
v. Time to complete the process:
57. The requirement that recommendations should be made six
D months in advance by the Chief Justice of the High Court emanates
from the concept that the said period should be required to complete the
process in case of a regular appointment of a Judge under Article 217 or
224 of the Constitution of India. In view of number of aspects not required
to be adverted to for appointment under Article 224A we are of the view
E that a period of about three months should be sufficient to process a
recommendation and, thus, ideally a Chief Justice should start the process
three months in advance for such appointment.
vi. Tenure of Appointment:
58. The tenure for which an ad hoc Judge is appointed may vary
F on the basis of the need but suffice to say that in order to give an element
of certainty and looking to the purpose for which they are appointed,
generally the appointment should be for a period between two to three
years.
vii. Number of Appointments:
G 59. We are also of the view that, at least, for the time being
dependent on the strength of the High Court and the problem faced by
the Court, the number of ad hoc Judges should be in the range of two to
five in a High Court. However, it is clarified that an ad hoc Judge(s) will
not be part of the sanctioned strength of Judges of the High Court to
H which they are appointed.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA IAS 349
(RETD.) v. UNION OF INDIA & ORS.

viii. Role of ad hoc Judges: A
60. The primary objective being to deal with long pending arrears,
the said objective will be subserved by assigning more than five year old
cases to the ad hoc Judges so appointed. However, this would not impinge
upon the discretion of the Chief Justice of the High Court, if exigencies
so demand for any particular subject matter even to deal with the cases B
less than five years old, though the primary objective must be kept in
mind. It is further clarified that an ad hoc Judge will not be entrusted any
administrative work, as such entrustment will defeat the very purpose of
appointment of ad hoc Judge(s), which is to clear the backlog of old
cases.
C
61. One of the issues raised is of constitution of Benches of an ad
hoc Judge and sitting Judge in matters to be heard by Division Bench
and as to who would preside. We are of the view that 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. We also make it
clear that because of the very nature of the profile and work to be D
carried out by ad hoc Judges, it would not be permissible for an ad hoc
Judge to perform any other legal work whether it be advisory, of arbitration
or appearance.
ix. Emoluments and Allowances:
E
62. We have already discussed in the substantive part of the order
that the emoluments and allowances of an ad hoc Judge should be at par
with a permanent Judge of that Court at the relevant stage of time minus
the pension. This is necessary to maintain the dignity of the Judge as
also in view of the fact that all other legal work has been prohibited by
us in terms of the aforesaid guidelines. F
63. We also make it clear that emoluments to be paid would be a
charge on the Consolidated Fund of India consisting of salary and
allowances. We may also clarify that it is a misconceived notion that
there will be an additional burden on the State Government if some
perquisites are made available to ad hoc Judges by the State Government. G
The trigger for appointment of ad hoc Judges is the very existence of
vacancies and had these vacancies been filled in, the State Government
would have incurred these expenses anyhow. In any case there is a limit
placed on the number of ad hoc Judges and, thus, the existence of
vacancies actually results in the savings for the State Government(s),
H
350 SUPREME COURT REPORTS [2021] 3 S.C.R.

A which would otherwise be amount expended as their allowances and
perks.
64. We make it clear that when we refer to allowance/perks/
perquisites all benefits as are admissible to the permanent/additional
Judge(s) would be given to the ad hoc Judge(s). For clarity we may say
B that as far as housing accommodation is concerned, either the rent-free
accommodation should be made available or the housing allowance should
be provided on the same terms and conditions. For all practical purposes
the ad hoc Judge would receive the same emoluments, allowances and
benefits as are admissible to the permanent/additional Judges. We may
note that the Second Schedule, Part D of the Constitution of India
C stipulates the emoluments and benefits that have to be conferred on the
judges of the Supreme Court and of the High Courts.
Conclusion:
65. We have taken the first step with the hope and aspiration that
D all concerned would cooperate and retiring/retired Judges would come
forth and offer their services in the larger interest of the Judiciary. The
guidelines cannot be exhaustive and that too at this stage. If problems
arise, we will endeavour to iron them out. We must set aside
apprehensions, if any, to chart this course and we are confident that
there will be a way forward.
E
66. In view of the requirements of a continuous mandamus to see
how a beginning has been made, list after four months calling upon the
Ministry of Justice to file a report in respect of the progress made.

F Nidhi Jain Directions issued.

G

H