Is appointing ad-hoc judges a viable means to reduce backlog?

Is appointing ad-hoc judges a viable remedy for reducing pendency?

Rajeev Shakdher: The move is commendable. The Supreme Court first endorsed the appointment of ad-hoc judges in its 2021 ruling in Lok Prahari v. Union of India, though such a measure should have been introduced even earlier. As of January 25, 2025, High Courts were burdened with a staggering backlog of 62 lakh cases.

However, with only three recorded instances of such appointments in the past, the practice has failed to gain traction. Now that the Supreme Court has revisited the issue, there is renewed hope for the implementation of concrete and lasting reforms.

Shadan Farasat: The Constitution allows for appointing ad-hoc judges in both the Supreme Court and High Courts for a reason. However, my concern is that these appointments require presidential approval, making government cooperation crucial. While the judiciary may propose candidates, their appointment ultimately depends on the executive’s willingness to act. Since ad-hoc judges are not typically assigned politically sensitive cases, I am hopeful that the government will approve these appointments without delay.

Is it more prudent to first address challenges in the regular judicial appointment process?

Shadan Farasat: In our 75-year constitutional history, no policy measure has been introduced to address the docket crisis systematically. We will have to wait and see how this initiative unfolds. However, the government’s handling of regular judicial appointments remains a concern, with several deserving judges either overlooked for elevation to the Supreme Court or appointed as High Court Chief Justices far too late. This issue requires urgent redress.

Rajeev Shakdher: The appointment of ad-hoc judges is unlikely to interfere with the regular judicial appointment process, as both operate independently. Ultimately, it is the common litigants who bear the brunt of judicial delays. From personal experience, no matter how much effort one exerts, there is rarely enough time to adjudicate each case satisfactorily.

Expediting criminal appeals would also benefit the government by reducing the financial strain of maintaining overcrowded jails filled with undertrials. However, for this measure to be truly effective, Chief Justices must take a proactive role. The real challenge lies in identifying a cohort of candidates with impeccable integrity and strong technical expertise. Only once this hurdle is overcome does the government’s role come into play.

The Supreme Court has previously found the ad-hoc appointment process cumbersome. Are any reforms needed?

Rajeev Shakdher: To ensure these appointments achieve their intended purpose, the process must be simplified. The Chief Justice of the relevant High Court should directly recommend a candidate to the Supreme Court collegium after securing their consent, after which the collegium can forward its recommendation to the government. The Lok Prahari verdict also sets a three-month timeline for completing the process.

It may be prudent for the Chief Justice to secure some form of pre-approval from the Centre before making a recommendation. However, subjecting ad-hoc appointees to an Intelligence Bureau clearance would be unnecessary and counterproductive. As retired judges, they may be discouraged by such scrutiny, and the added procedural hurdle would only lead to further delays.

Shadan Farasat: Ad-hoc appointments should follow a summary process. As retired judges, they have already undergone rigorous vetting — not just by the government but also by the legal fraternity. Therefore, their appointments should be largely uncontroversial.

Could these appointments hinder the career progression of senior judges or those in the district judiciary?

Shadan Farasat: No, they will not. Ad-hoc judges serve for a limited term of two to three years and do not compete with sitting judges. Their appointment does not affect the seniority of High Court judges for elevation as Chief Justices or to the Supreme Court. It also in no way impacts promotions within the district judiciary.

Rajeev Shakdher: Article 224A of the Constitution clearly states that while ad-hoc judges exercise the same judicial authority as sitting judges, they cannot be deemed to be a judge of that High Court. Since they are not eligible for elevation, their appointment does not impact other sitting judges. These appointments also do not affect the elevation of service judges in the district judiciary. Most High Courts are already functioning below their sanctioned strength. As of February 1, 2025, there were 367 vacancies against a sanctioned strength of 1,122 judges.

Indian courts already lack basic amenities. Will these appointments put additional strain on the existing judicial infrastructure?

Rajeev Shakdher: A judge cannot effectively perform judicial duties without essential personnel — stenographers, private secretaries, and court masters. The government must guarantee these resources. It could perhaps consider assigning more law researchers to ad-hoc judges, given their primary focus on judicial work rather than administration. This should not pose a major hurdle. If the government is truly committed to reducing arrears, it must allocate the necessary budget for this greater cause.

Shadan Farasat: As Justice Shakhdher pointed out, the key issue is the executive’s willingness to cooperate. Most High Courts already have ample space that could be repurposed into additional courtrooms. While some personnel may need to be reassigned or appointed on an ad-hoc basis, these are logistical challenges that can be easily addressed.

Justice Shakdher, does the system adequately incentivise meritorious judges to return to the Bench? Or would most prefer arbitration or independent practice instead?

Rajeev Shakdher: You are right. Persuading judges to return to the system will be challenging. Much will depend on the perks and privileges offered. Financially, arbitration and independent practice are far more lucrative alternatives. In fact, I hear the Supreme Court is struggling to find suitable candidates for tribunal vacancies. Even appointing senior lawyers as ad-hoc judges presents a major hurdle: after serving the stipulated term, they are barred from practising in the same High Court. This forces them to relocate to another High Court or limit their practice to the Supreme Court, which is difficult for those based outside Delhi.

Do such appointments pose any concerns related to judicial independence?

Shadan Farasat: In my view, judicial independence is ultimately a state of mind. The mere fact that a judge was practising at the bar until recently and may return to it in the near future does not necessarily undermine their independence. Traditionally, judges were expected to remain isolated from society and the bar, but that notion has evolved — arguably for the better. Social interactions do not inherently compromise judicial independence. One can meet someone socially one day and face them in court the next, yet still adjudicate based solely on the merits of the case.

Rajeev Shakdher: If the right candidates are chosen, this should not be a problem. A judicial appointment comes with the legitimate expectation of rising through the ranks. However, the system does not always reward the most hard-working or capable judges, leading to dissatisfaction. With ad-hoc appointments, this concern does not arise. There is no aspiration for higher ranks — one serves for a limited period, fulfils their role, and moves on.

Listen to the conversation in The Hindu Parley podcast