Constitution of India
Article 224A: Appointment of retired Judges at sittings of High Courts
Part VI — The States (Chapter V — The High Courts in the States)
Article 224A (single article — no sub-clauses)
WHAT IT SAYS: 1. The Chief Justice of a High Court, with the previous consent of the President, may request any person who has held the office of Judge of that Court or any other High Court to sit and act as a Judge of the High Court for that State. 2. Such person, while sitting and acting, is entitled to allowances as the President may determine. 3. Such person has all the jurisdiction, powers and privileges of a Judge of the High Court. 4. Such person shall NOT otherwise be deemed to be a Judge of that High Court. 5. Proviso: No retired judge can be compelled — consent of the retired judge is mandatory. WHAT IT MEANS: 1. It is an emergency constitutional device — NOT a parallel source of regular appointments. 2. Only a temporary measure to address case backlogs or extraordinary situations. 3. The retired judge functions as a full judge for jurisdiction, powers and privileges — but cannot be transferred under Art. 222, is not counted for Art. 216 strength, and earns no additional pension. 4. Begins with a non-obstante clause — overrides all other provisions of Chapter V, Part VI. 5. No upper age limit prescribed for the retired judge being recalled. KEY DOCTRINE: 1. Deeming fiction doctrine — the ad hoc judge IS a judge for jurisdiction, powers and privileges, but by legal fiction is NOT a judge for all other purposes (Krishan Gopal v. Prakash Chandra, 1974). 2. 'Dormant provision' doctrine — Article 224A is an emergency constitutional mechanism to be activated only after regular appointments are in process, not as a substitute (Lok Prahari v. Union of India, 2021).
Constitutional Inspiration
SOURCE(S): 1. [England] — Section 8 of the Supreme Court of Judicature (Consolidation) Act, 1925 Original provision: Allowed retired judges in England to be requested to sit and act in the Supreme Court of Judicature on a temporary basis with their consent. What India kept: The language of 'request and consent' for recalling retired judges was adopted almost word-for-word. 2. [India — Article 128] — Attendance of retired Judges at sittings of the Supreme Court Original provision: Article 128 (original Constitution) allowed retired SC judges to sit and act in the Supreme Court; the 15th Amendment extended this model to High Courts via Article 224A. What India kept: Identical structure — Chief Justice requests, President consents, retired judge agrees. INDIA'S SPECIFIC ADAPTATIONS: 1. Presidential consent required — In England, the Lord Chancellor made the request; India added the safeguard of prior Presidential consent to prevent patronage. 2. Non-obstante clause — India uniquely placed Article 224A outside the regular appointment framework (Articles 216-224), making it independent of standard judicial appointment procedures. 3. Explicit proviso on voluntariness — The framers added a specific proviso that a retired judge cannot be compelled, reflecting concerns about judicial independence post-retirement. 4. No age ceiling — Unlike regular judges (retiring at 62), no upper age limit was set for ad hoc judges, allowing maximum flexibility.
Constituent Assembly Debate
DEBATED ON: 7th June 1949 (CAD Volume VIII, ¶181) (Note: Article 224A was debated as Draft Article 200 — the ad hoc judges provision was originally part of Draft Art. 200/original Art. 224. It was removed by the 7th Amendment Act 1956 and reintroduced as Article 224A by the 15th Amendment Act 1963.) KEY SPEAKERS: 1. Dr. B.R. Ambedkar — Defended the provision, stating a similar article had been passed for the Supreme Court and citing precedents from America and Great Britain. 2. H.V. Kamath (C.P. & Berar) — Questioned whether any written constitution in the world had incorporated such a provision; called it anomalous given the fixed retirement age. 3. Jaspat Roy Kapoor — Moved amendment that the President's consent should be required before the Chief Justice recalls a retired judge (amendment was adopted). 4. Tajamul Husain (Bihar) — Supported the provision but said the Chief Justice, being familiar with retired judges, should make the request rather than the President. 5. R.K. Chaudhari — Feared the provision would be misused by a Chief Justice inviting retired friends to the Bench by the 'back door'. MAJOR DISAGREEMENTS: 1. [Patronage risk] — Members feared Chief Justices would recall personal favourites; Ambedkar responded this was not the intent and the provision served judicial efficiency. 2. [Presidential consent] — Whether the President's concurrence was needed; the amendment requiring presidential consent was adopted. 3. [Duration of appointment] — Whether ad hoc judges should serve only for stated periods and particular cases, not as general clearance of arrears. FINAL OUTCOME: Draft Article 200 was adopted with the amendment requiring Presidential consent; later removed by 7th Amendment (1956) as inadequate, then reintroduced as Article 224A by 15th Amendment (1963). AMBEDKAR'S KEY QUOTE: "I did not think that this article would give rise to such a prolonged debate, in view of the fact that a similar article has been passed with regard to the Supreme Court."
Landmark Judgments
LANDMARK JUDGMENTS: 1. Krishan Gopal v. Shri Prakash Chandra (1974) — Constitution Bench (5 judges) held that an ad hoc judge under Art. 224A possesses full jurisdiction, powers, and privileges of a HC judge, and can try election petitions; the 'deeming fiction' means he is NOT a judge only for non-jurisdictional purposes. 2. Union of India v. Sankalchand Himatlal Sheth (1977) — SC held that consent of the retired judge is essential because upon retirement he ceases to be bound by conditions of service and cannot be compelled to serve. 3. Justice P. Venugopal v. Union of India (2003) — SC held that an ad hoc judge does not become part of the High Court; therefore, his ad hoc tenure cannot be counted for pension computation. 4. Indian Society of Lawyers v. President of India (2011) — Full Bench of Allahabad HC held that an ad hoc judge does not fall within Art. 216, the President does not 'appoint' him, and the regular appointment process under Art. 217 does not apply. 5. Lok Prahari v. Union of India (2021) — SC activated the 'dormant' Article 224A, laid down comprehensive guidelines for ad hoc judge appointments, including trigger points (20% vacancy threshold, 5-year pendency, etc.), tenure of 2-3 years, and routing recommendations through the Supreme Court Collegium. 6. Lok Prahari (Modification Order, January 2025) — SC relaxed the 20% vacancy threshold, capped ad hoc judges at 2-5 per HC (max 10% of sanctioned strength), and directed ad hoc judges to sit with sitting judges to hear pending criminal appeals. NOTABLE DISSENTS (if any): 1. Justice Jasti Chelameswar in SCAORA v. Union of India (2015) — Sole dissenter upholding the NJAC Amendment (99th Amendment) which had substituted 'Chief Justice' with 'NJAC' in Article 224A; the majority struck down the NJAC, restoring the original text. SCHOLARS & JURISTS: 1. Abhishek Manu Singhvi — Argued that Article 224A is a pragmatic tool that must be used alongside, not instead of, regular appointments. 2. Law Commission of India (79th, 124th, 188th, 245th, 249th Reports) — Consistently recommended ad hoc judicial appointments under Art. 224A to address chronic pendency, while cautioning about accountability and short tenure limitations. 3. Justice Shakdher (Delhi HC) — Noted only three historical instances of ad hoc appointments; proposed streamlined process where HC Chief Justices recommend directly to the SC Collegium.