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Ad Hoc Judges Under Article 224A: Can the Collegium Appoint Retired Judges Without Bar Council Consent?
Introduction
On 3 February 2026, the Supreme Court Collegium took a step that few had anticipated after decades of legislative dormancy — it approved the appointment of five retired judges as ad hoc judges of the Allahabad High Court under Article 224A of the Constitution of India [1]. The five retired judges — Justices Mohd. Faiz Alam Khan, Mohd. Aslam, Syed Aftab Husain Rizvi, Renu Agarwal, and Jyotsna Sharma — were recommended for a two-year tenure to address the staggering backlog of approximately 11.55 lakh pending cases in a court that operates with only 110 sitting judges against a sanctioned strength of 160 [1]. The development triggered immediate pushback from the Allahabad High Court Bar Association (HCBA), which questioned both the selection process and whether the Collegium even had the constitutional authority to initiate such appointments without consulting the Bar. This article examines the constitutional foundation of Article 224A, its regulatory framework, the relevant case law, and the unresolved question of whether Bar Council consent is legally necessary or merely a matter of institutional practice.
The Constitutional Text: What Article 224A Actually Says
Article 224A was inserted into the Constitution by the Constitution (Fifteenth Amendment) Act, 1963 [2]. It reads, verbatim, as follows:
“Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State 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 for that State, and every such person so requested 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 such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.”
Three structural features of this provision demand careful attention. First, the operative authority vested by the text is in the Chief Justice of the High Court — not in the Supreme Court Collegium. Second, the provision requires only two consents: the prior consent of the President of India, and the personal consent of the retired judge being requested. Third, and critically, the text deliberately employs the language of “request” rather than “appointment,” underscoring that this provision operates as an extraordinary and temporary constitutional device rather than a routine mechanism for filling judicial vacancies [2]. No mention of Bar Council consultation, no mention of Collegium approval — the text, on its face, is unambiguous.
The provision sits in Part VI of the Constitution, which governs state-level structures. It differs fundamentally from Article 217, which provides for permanent appointments to High Courts, and from Article 224, which deals with additional and acting judges for situations of temporary increase in judicial business or pending arrears. Article 224A, unlike those provisions, is aimed specifically at drawing on the expertise of retired judges — those who have already once been appointed through the full constitutional process and whose judicial fitness has already been tested [3].
Historical Background: A Provision Frozen in Time
The story of Article 224A is one not of active deployment but of prolonged constitutional dormancy. At the inception of the Constitution, the original Article 224 — drawn almost word-for-word from Section 8 of the Supreme Court of Judicature Act of England — already provided for the appointment of retired judges as ad hoc judges. That provision was repealed by the Constitution (Seventh Amendment) Act, 1956, on the ground that it had proved neither adequate nor satisfactory in practice. In its place came the current Article 224, dealing with additional and acting judges. The provision for retired judges was then reintroduced as a standalone provision — Article 224A — through the Constitution (Fifteenth Amendment) Act, 1963 [3].
Despite this legislative reintroduction, Article 224A was invoked barely three times over more than six decades. The first occasion was in 1972, when Justice Suraj Bhan of the Madhya Pradesh High Court, who had retired on 2 February 1971, was appointed as an ad hoc judge on 23 November 1972 for a period of one year or until the disposal of election petitions entrusted to him, whichever was earlier. The second instance was the appointment of Justice P. Venugopal of the Madras High Court in 1982, and the third was the appointment of Justice O.P. Srivastava in the Allahabad High Court in 2007, as part of the special bench constituted to hear the Ayodhya title dispute matter [2]. The Collegium resolution of February 2026 marks the fourth such instance — and, by far, the most publicly contested.
The Regulatory Framework: The 1998 Memorandum of Procedure
The procedural backbone governing appointments under Article 224A is the Memorandum of Procedure (MoP), prepared in 1998 pursuant to the judgment in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 — the Second Judges Case — read together with the advisory opinion in Special Reference No. 1 of 1998, (1998) 7 SCC 739, the Third Judges Case [4]. Paragraph 24 of the MoP specifically deals with “attendance of retired judges at sittings of High Courts” and lays down the following collaborative procedure between the executive and the judiciary.
Whenever the necessity for such an appointment arises, the Chief Justice of the High Court, after obtaining the consent of the person concerned, communicates to the Chief Minister of the state the name of the retired judge and the period for which he will be required to sit and act. The Chief Minister, after consultation with the Governor, forwards the recommendation to the Union Minister of Law, Justice and Company Affairs. The Union Minister then consults the Chief Justice of India. On receipt of the Chief Justice of India’s advice, the matter is placed before the Prime Minister, who advises the President. Once the President gives consent, the Secretary to the Government of India in the Department of Justice issues the necessary notification in the Gazette of India [5].
Nowhere within this procedure is the Bar Council or Bar Association mentioned as a mandatory participant. The MoP operates exclusively between constitutional and executive authorities. It is not a statute — it does not have the force of “law declared” by the Supreme Court under Article 141 of the Constitution — but it has been consistently treated as the operative procedural framework and was specifically reiterated by the Supreme Court in its January 2025 order revisiting the Lok Prahari directions [2].
The Collegium’s Role: Judicial Expansion of a Constitutional Provision
Here lies the most doctrinally significant tension in the current controversy. The text of Article 224A contains no reference to the Supreme Court Collegium. The only consents expressly mandated are those of the President and the retired judge. This is in sharp contrast to Articles 124, 217, and 222 of the Constitution, where Presidential consultation with the Chief Justice of India is constitutionally required and where, following the Second Judges Case of 1993, the Collegium’s recommendation has been treated as binding. Legal scholars and the Allahabad HCBA have both pointed out that Article 224A expressly does not require such CJI consultation in the manner that other appointment provisions do, and that none of the prior cases dealing with Article 224A had established such a requirement [6].
It was the Supreme Court itself, in Lok Prahari (2021), that judicially grafted the requirement of Collegium approval onto this process. The Court directed that after the Chief Justice of the High Court obtains the consent of the retired judge, the recommendation must be routed to the Collegium of the Supreme Court — comprising the Chief Justice of India and the two senior-most judges — before proceeding to the President [6]. Critics have argued that this represents a judicial expansion of the provision’s plain text, adding a layer of scrutiny that the Constitution itself does not prescribe. The Court’s practical rationale was, however, transparent: since retired judges have already undergone the full constitutional appointment process once, background verification by agencies such as the Intelligence Bureau is unnecessary, thereby ensuring expedition while still maintaining institutional oversight through the Collegium.
Case Law: Interpreting the Scope of Article 224A
Krishan Gopal v. Shri Prakash Chandra, (1974) 1 SCC 128
The first significant judicial examination of Article 224A came in Krishan Gopal v. Shri Prakash Chandra, decided by a Constitution Bench of five judges of the Supreme Court. The central question was whether Justice Suraj Bhan, sitting and acting as an ad hoc judge under Article 224A, had jurisdiction to try an election petition under Section 80A of the Representation of the People Act, 1951. The Court held that an ad hoc judge is indeed a judge of the High Court for the purposes of jurisdiction, powers and privileges. The proviso “shall not otherwise be deemed to be a Judge of that High Court” was read to mean that the person is a judge for jurisdictional purposes but not for other constitutional purposes, such as transfer under Article 222 [7]. The Court observed that any construction of Article 224A that rendered it ineffective and purposeless must be rejected. This distinction between functional judicial authority and permanent constitutional status has remained the bedrock of all subsequent interpretation of the provision.
Lok Prahari v. Union of India — The April 2021 Judgment
The transformative judgment is Lok Prahari Through Its General Secretary S.N. Shukla IAS (Retd.) v. Union of India, decided on 20 April 2021, reported as (2021) 15 SCC 80. A PIL filed by Lok Prahari under Article 32 sought the activation of Article 224A to tackle over 57 lakh pending cases in High Courts nationally, with a vacancy rate of nearly 40 per cent [8]. The bench of Chief Justice S.A. Bobde and Justices Sanjay Kishan Kaul and Surya Kant opened its judgment with the following declaration:
“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 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 utilised to subserve an endeavour to solve an existing problem.”
The Court laid down that vacancies exceeding 20 per cent of the sanctioned strength, or a situation where more than 10 per cent of the backlog consisted of cases pending for over five years, would constitute valid trigger points for invoking Article 224A. It directed each High Court’s Chief Justice to maintain a panel of retired or soon-to-retire judges, fixed tenure at two to three years, capped ad hoc appointments at two to five per court, and required all recommendations to pass through the Supreme Court Collegium before reaching the President. The Court was unequivocal that these appointments cannot serve as a substitute for regular appointments under Article 224 — they are a supplement, not a replacement [8].
Lok Prahari v. Union of India — The January 2025 Modification
In January 2025, a three-judge bench comprising then Chief Justice of India Sanjiv Khanna, Justice B.R. Gavai, and Justice Surya Kant revisited the 2021 directions and significantly relaxed them. The earlier 20 per cent vacancy trigger was kept in abeyance, and the Court held that each High Court may appoint between two and five ad hoc judges, not exceeding 10 per cent of the sanctioned strength, primarily to address pending criminal appeals. These judges would sit in benches presided over by a sitting judge of the High Court [9]. In December 2025, the Supreme Court clarified further that the Chief Justice of the High Court would have full discretion over bench composition — including single benches of ad hoc judges, mixed benches of one sitting and one ad hoc judge, and benches of two ad hoc judges — restoring significant flexibility to the process [4].
The Bar Association Controversy: Is Bar Council Consent Required?
The Allahabad High Court Bar Association, in its representation dated 5 February 2026, raised two distinct objections. The substantive objection concerned the quality of the five selected judges — the Association alleged that their case disposal records during their original tenures were strikingly limited, with one judge having delivered as few as 46 judgments over a near two-year period, making them unsuitable choices for the specific purpose of reducing pendency. The structural objection was constitutional: the Association contended that the Collegium’s initiation of the process contradicted Article 224A itself, which designates the Chief Justice of the High Court as the primary requesting authority subject only to presidential consent [4].
The structural argument has genuine textual grounding. Article 224A does vest initiating authority in the High Court’s Chief Justice, and the Collegium’s involvement is a judicially constructed addition. But it does not follow from either the constitutional text or any body of case law that Bar Council or Bar Association consent is a legal requirement. The appointment framework under Article 224A operates exclusively between constitutional authorities: the High Court’s Chief Justice, the state executive, the Union executive, the Supreme Court Collegium (added by judicial interpretation), and the President of India. The Bar, however influential as an institutional voice, is not a constitutionally mandated participant in this chain. The HCBA’s protest reflects legitimate concerns about transparency and merit — concerns that are judicially cognisable to the extent that they allege a violation of the Lok Prahari guidelines themselves — but it does not amount to a legal entitlement to participate in or block these appointments [2].
Broader Implications and Conclusion
A persistent concern in both judicial and academic discourse is whether expanded recourse to Article 224A may, over time, reduce institutional pressure to fill regular vacancies promptly. The Supreme Court raised this concern explicitly in Lok Prahari (2021), cautioning that the provision must not become an alternative to regular appointments. It is designed as an emergency constitutional device for extraordinary circumstances, not a mechanism for managing chronic judicial understaffing [2]. The 188th Report of the Law Commission of India (2003) similarly limited its recommendation to using the provision specifically for clearing arrears within manageable proportions, emphasising that it must complement rather than substitute structural judicial reforms [5].
Article 224A is, constitutionally and historically, a provision of significant potential that has spent most of its existence as a dead letter. The Collegium’s February 2026 resolution is procedurally consistent with the framework built by the Supreme Court since 2021. Bar Council consent is not legally required — the constitutional text is explicit, and no judicial authority has imposed such a condition. What the HCBA’s protest usefully raises is whether the Collegium is applying the merit-based selection criteria that Lok Prahari demanded with sufficient rigour. That question is legitimate, important, and still open. The Constitution provides the tool; the question of whether those wielding it are doing so with the care and quality that the justice system demands is one that institutional scrutiny — including, informally, from the Bar — must continue to ask.
References
[1] LawStreet Journal, Article 224A Explained: Why the Supreme Court Appointed Ad Hoc Judges to the Allahabad HC (2026). Available at: https://lawstreet.co/judiciary/article-224a-explained-why-the-supreme-court-appointed-ad-hoc-judges-to-the-allahabad-hc
[2] Verdictum, Article 224A and the Re-emergence of Ad Hoc Judges: A Legal Opinion (February 2026). Available at: https://www.verdictum.in/columns/article-224a-ad-hoc-judges-supreme-court-collegium-1606845
[3] LiveLaw, Explainer: Appointment of Ad-Hoc Judges Under Article 224A (2026). Available at: https://www.livelaw.in/articles/explainer-appointment-of-ad-hoc-judges-under-article-224a-522242
[4] Bar & Bench, Allahabad High Court Bar Association opposes Collegium move to appoint five retired HC judges on ad hoc basis (February 2026). Available at: https://www.barandbench.com/news/allahabad-high-court-bar-association-opposes-collegium-move-to-appoint-five-retired-hc-judges-on-ad-hoc-basis
[5] Manorama Yearbook, Article 224A and Appointment of Ad-Hoc Judges in High Courts (January 2025). Available at: https://www.manoramayearbook.in/current-affairs/india/2025/01/24/article-224a-ad-hoc-judges-in-high-courts.html
[6] Law School Policy Review, The Peculiar Introduction of ‘Collegium Approvals’ in Ad-Hoc High Court Judge Appointments (April 2021). Available at: https://lawschoolpolicyreview.com/2021/04/27/the-peculiar-introduction-of-collegium-approvals-in-ad-hoc-high-court-judge-appointments/
[7] Latest Laws, Krishan Gopal v. Shri Prakash Chandra and Others, (1974) 1 SCC 128 [Supreme Court of India, 8 November 1973]. Available at: https://www.latestlaws.com/latest-caselaw/1973/november/1973-latest-caselaw-201-sc/
[8] Judgment Library, Lok Prahari Through General Secretary S.N. Shukla IAS (Retd.) v. Union of India & Others, (2021) 15 SCC 80 [Supreme Court of India, WP(C) No. 1236 of 2019, decided 20 April 2021]. Available at: https://judgmentlibrary.com/supreme-court-invokes-article-224a-to-address-judicial-vacancies-and-case-backlogs/
[9] SCC Online Blog, Art. 224-A | Supreme Court allows appointment of Judges to High Courts on ad-hoc basis; Relaxes conditions, Lok Prahari v. Union of India, decided 30 January 2025. Available at: https://www.scconline.com/blog/post/2025/01/30/art-224-a-supreme-court-relaxes-conditions-for-ad-hoc-judges-appointment-in-high-courts/
