A constitutional tool meant to ease the crushing backlog in High Court criminal appeals is facing an unexpected obstacle: courtroom hierarchy. Chief Justice of India Surya Kant has disclosed that many retired High Court judges are reluctant to return as ad hoc judges under Article 224A because they feel “embarrassed” to sit as junior colleagues alongside younger serving judges. At the same time, serving judges, he noted, are uneasy about sitting with a retired judge “heading” a Division Bench. The result is a workable legal mechanism, but a hesitant institutional uptake.
What’s in the news
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The Chief Justice of India said retired judges are reluctant to serve as ad hoc judges because they do not want to sit as “junior” judges with serving judges on Division Benches.
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He also pointed to the other side of the discomfort: serving judges question why they should sit with a retired judge heading the bench.
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The discussion is set against high criminal pendency in High Courts, with National Judicial Data Grid figures indicating large volumes of long-pending cases.
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High Court vacancies remain significant against sanctioned strength.
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The Attorney-General suggested that Chief Justices of High Courts should build internal concurrence, and the CJI indicated that Chief Justices need “space and discretion.” Concerns were also raised about fine-tuning recruitment process and tenure conditions for ad hoc judges.
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Background and context
The pendency that triggered constitutional improvisation
High Courts are carrying a heavy backlog, particularly in criminal matters where delays have direct consequences: undertrials wait, victims lose closure, and deterrence weakens. The recent disclosure references National Judicial Data Grid numbers running into nearly nineteen lakh criminal cases across High Courts, with a large proportion pending beyond one year. This is not just an efficiency issue; it is a credibility issue for the justice system.
Why Article 224A came back into the spotlight
Article 224A allows the Chief Justice of a High Court, with the President’s consent, to request a retired High Court judge to sit and act as a judge of that High Court. The Supreme Court, alarmed by the backlog, activated and operationalised this mechanism through a judgment earlier in 2025 to specifically help clear criminal appeals.
Why adoption has been lukewarm
Despite the legal pathway, several High Courts have reportedly not forwarded names for ad hoc appointments. The CJI’s remarks suggest the reason is not only administrative delay but also a “human systems” problem: status, hierarchy, and comfort within collegial bench functioning.
Key issues and what they practically mean
1) Bench composition is the fulcrum
Most criminal appeals in High Courts are heard by Division Benches. If an ad hoc judge must sit with a serving judge, the bench becomes a pairing problem rather than just an appointment problem. It requires:
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willing retired judges,
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willing serving judges,
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and clear internal norms on who presides, how roles are distributed, and how collegiality is maintained.
2) The 2021–2025 shift created a friction point
A prior judicial direction had suggested that if two ad hoc judges are appointed, they could sit together as a Division Bench. The later direction requiring an ad hoc judge to sit with a serving judge changes the interpersonal equation and, as the CJI notes, introduces questions of “who leads” and “who is junior.”
3) Vacancy pressure amplifies the need, but also complicates pairing
High Court vacancies against sanctioned strength create a double bind:
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fewer serving judges available to pair with ad hoc judges,
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yet greater urgency to add capacity.
Without benching flexibility, ad hoc appointments may not convert into meaningful disposal rates.
4) Tenure and process clarity matter more than people assume
If retired judges feel they are stepping into an uncertain, potentially awkward role without dignified clarity on tenure, responsibilities, and administrative support, reluctance is rational. Fine-tuning recruitment processes and tenure conditions is not procedural ornamentation; it is the engine of participation.
Why it matters
1) Criminal pendency is not a “statistics” problem; it is a liberty problem
Delays in criminal appeals can mean prolonged incarceration, delayed acquittals, and weakened faith in the rule of law. In many cases, time itself becomes punishment, even before final adjudication.
Any credible pendency-reduction strategy must work in criminal dockets first.
2) Article 224A is a rare capacity lever that does not require years to mature
New judicial appointments and infrastructure improvements are essential, but they take time. Ad hoc judges are one of the few immediate levers available within the constitutional design. If even this lever is blocked by avoidable institutional discomfort, the system loses a precious opportunity.
3) The challenge exposes the “culture layer” of judicial reform
Judicial reform is often framed as vacancies, infrastructure, and procedure. The CJI’s statement shines light on a quieter layer: status dynamics and internal collegial functioning. Reforms fail when they ignore how institutions actually behave.
4) A stalled mechanism affects public trust and litigant behaviour
When litigants see repeated “solutions” announced but not implemented, cynicism rises. That cynicism feeds more litigation, more interim applications, and greater reluctance to settle or narrow issues, deepening the backlog.
5) It affects the credibility of future innovations
If the system cannot operationalise a constitutionally sanctioned tool due to benching sensitivities, it becomes harder to implement more ambitious reforms later. Fixing this now is a signal of institutional maturity.
Arguments for and against greater reliance on ad hoc judges
The case for ad hoc judges
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Quick capacity addition: retired judges can start contributing faster than new recruitment cycles.
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Experience in criminal appellate work: many retirees bring deep familiarity with criminal law and court craft.
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Targeted deployment: can be focused on old criminal appeals, bail backlogs, and sentence-related matters.
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A confidence signal: shows the system is willing to use constitutional options to protect justice delivery.
The case for caution
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Sustainability concerns: ad hoc judges are a bridge, not a substitute for filling vacancies and strengthening regular benches.
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Institutional coherence: inconsistent benching practices can create administrative confusion and uneven outcomes.
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Perception risks: if not handled with dignity and clarity, it can be seen as “temporary patchwork,” weakening morale.
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Process and tenure ambiguity: unclear terms can deter retired judges and complicate accountability.
A balanced approach is to treat ad hoc appointments as a disciplined, time-bound capacity booster with clear safeguards, not a permanent parallel judiciary.
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Constitutional and legal angle
Article 224A: constitutional legitimacy, operational challenge
Article 224A is constitutionally embedded, making it a stronger instrument than purely executive or administrative fixes. However, its use requires:
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a request mechanism from the High Court side,
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appropriate approvals,
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and procedural compliance under established appointment processes.
Judicial directions and benching constraints
When the Supreme Court frames how ad hoc judges must be benched (for example, whether they must sit with serving judges), it shapes operational feasibility. The present debate indicates that benching rules may need calibrated flexibility that respects:
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judicial independence,
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High Court autonomy in roster and bench formation,
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and the dignity of both serving and retired judges.
“Space and discretion” for High Court Chief Justices
The CJI’s acknowledgement that Chief Justices should have space and discretion reflects a constitutional truth: High Courts are not mere administrative units; they are constitutional courts requiring internal governance room to make practical arrangements work.
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Implications
1) A rethink on benching design is likely
If the discomfort is genuinely widespread, the system may move toward alternative models such as:
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pairing ad hoc judges together for certain categories,
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allowing ad hoc judges to sit in specially constituted criminal appeal benches,
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or creating mixed benches with clear protocols on presiding and opinion writing.
2) Internal judicial consensus becomes a governance priority
The Attorney-General’s suggestion points to a practical reality: success depends on internal concurrence among serving judges. Without a shared institutional understanding, even legally sound measures stall.
3) Better-defined tenure and service conditions may unlock participation
Clearer terms around tenure, case allocation, administrative support, and dignity of role can reduce hesitation among retired judges an
d normalise participation.
4) Focus may sharpen on high-burden High Courts
The mention of specific High Courts with heavy pendency indicates that any operational pilot will likely start where the pressure is greatest, making outcomes highly visible and consequential.
5) The debate may influence broader discussions on judicial capacity
Once benching culture is acknowledged as a bottleneck, it could also influence:
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roster management practices,
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case management reforms,
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and measures to strengthen appellate disposal without diluting fairness.
Way ahead
To convert Article 224A from promise to performance, the path forward should centre on dignity, clarity, and operational realism.
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Create a dignified bench protocol: a clear, uniform practice on how ad hoc judges are placed on Division Benches, including conventions on presiding, authorship of judgments, and courtroom administration.
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Permit flexible benching models: allow High Court Chief Justices measured discretion to constitute ad hoc-only Division Benches for defined criminal categories where suitable, or other workable formats that reduce resistance.
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Define tenure and workload transparently: retired judges are more likely to accept roles when service conditions are predictable, respectful, and professionally coherent.
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Use targeted case buckets: deploy ad hoc benches to dispose of old criminal appeals, sentence-only matters, and other categories where quick finality is realistic without compromising justice.
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Strengthen the regular pipeline: parallelly, accelerate regular appointments and reduce vacancies so that ad hoc judges remain a bridge solution, not a crutch.
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Build a culture of collegial partnership: the system must signal that ad hoc judges are not “junior substitutes” but experienced hands brought in for a public purpose, working alongside serving judges as partners in institutional duty.
There is a constructive opportunity here: if the judiciary can resolve this “status barrier” with grace, it can unlock faster criminal justice outcomes without waiting for structural reforms alone.
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Conclusion
The CJI’s remarks are a candid reminder that institutional reform is as much about people as it is about law. Article 224A offers a constitutionally sanctioned way to add judicial capacity quickly, but it will deliver only if the judiciary designs a dignified and workable benching framework that both retired and serving judges can embrace. Done right, it can become a forward-looking model: respectful to experience, fair to serving judges, and reassuring to citizens waiting for criminal justice to move.
Source credits : The Hindu; National Judicial Data Grid (as cited in reported figures); Ministry of Law and Justice vacancy data (as referenced in reports); Supreme Court proceedings as reported.
