High Court and Apex Court Judges and Uniformity in the Age of Retirement of Chair-Persons in Tribunals

When we adopted and gave to ourselves the Constitution in 1949, the retirement age of Judges was fixed at 60 years for High Courts and 65 years for the Supreme Court. For the High Court Judges, 60 years was increased to 62 years in 1963. At that time, the normal life expectancy was about 60 years. With the changes in social and financial set up as well as medical facilities, the present normal life expectancy is about 70 years. Barring a few exceptions, a person is fit and fine at the age of 62 or even 65 years. In our country, except for the Judges, the retirement age in some quasi-judicial bodies has been increased. The retirement age in different Tribunals has now been increased to 70 for Chairmen and 65 for members. In the circumstances, the Constitution provisions need a change for enhancing the age of retirement of High Court and Supreme Court Judges by at least 3 years.

There is a general trend to provide for enhanced age of retirement of Supreme Court and High Court Judges, Chairpersons and Members of various Tribunals constituted by the Government in the country and also of the employees in various spheres e.g. universities and government undertakings etc. vis-à-vis the normal age of retirement of Judges and Government servants. It is noticed that the longevity or life expectancy of our citizens is now nearly comparable to that in the developed countries and therefore, fresh proposals on the subject generally envisage enhanced age of retirement, but in the absence of clear-cut guidelines for prescribing retirement of age of Chairpersons or Members of various Tribunals in the country, different Ministries of the Government adopt different yardsticks.

It needs no mention that enhanced age of retirement is prescribed in the higher echelons of the administrative and judicial services because the professional experience gained by those working in them needs to be fully tapped for the good of the society. In the present liberalized economic era, the experience gained by Government employees after their retirement is being fruitfully tapped by many multi-national companies. These private enterprises pay hefty salaries to the retired Government employees because their valuable professional experience gained during their service in the Government is put to profitable use. In such a scenario, the Government should utilize the services of their retired employees to the fullest extent possible.

In almost every High Court, there is huge pendency of cases and the present strength of the Judges can hardly be said to be sufficient to cope with the alarming situation. The institution of cases is much more than the disposal and this fact adds to arrears of cases. The litigating citizens have a fundamental right of life, i.e. a tension free life through speedy justice delivery system. Now it has become essential that the present strength of the Judges should be increased manifold according to the pendency, present and probable.

It is also necessary that the work of the High Courts is decentralized, i.e. more Benches are established in all states. If there is manifold increase in the strength of the Judges and the staff, all cannot be housed in one campus. Therefore, the establishment of new Benches is necessary. It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long.

Judiciary today is more deserving of public confidence than ever before. The judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution while maintaining their aloofness and independence. Judges have to be made aware of the social changes in the task of achieving socio-economic justice for the people. The Indian judicial system is constantly exposed to new challenges, new dimensions and new signals and has to survive in a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today.

The Indian Constitution provides an admirable system of checks and balances under articles 124 (2) and 217 (1) for appointment of Judges of the Supreme Court and High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance was upset by the 2nd Judges’ case (Supreme Court Advocates-on-Record Association Vs. Union of India) and the Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998). It is time the original balance of power is restored. The Law Commission has in its 214th Report (2008) recommended accordingly.

The practice being followed in fixing the age of retirement of Chairpersons and Members of various Tribunals functioning in the country reveals that there exists no rationale in fixing different retirement age limits. There is neither any uniformity in the age of retirement, nor have any cogent reasons been given in the respective Acts justifying the criteria adopted for the purpose.

The question of increasing the retirement age of Judges of the higher judiciary, i.e. High Court and Supreme Court Judges from 62 to 65 and from 65 to 68 years respectively has also been a matter of serious discussion/consideration at different levels of the Government. Retirement age in many Government departments/disciplines, particularly educational and scientific/research institutions, has already been increased. It may be recalled that the retirement age of Central and State Government employees was first increased from 55 to 58 years and then from 58 to 60 years. For Judges of High Courts, the retirement age was increased only once from 60 to 62 and for the Supreme Court Judges, the retirement age since inception has been 65 years. Judges of High Courts and the Supreme Court retiring at the age of 62 and 65 respectively need to have a substantial tenure in various Tribunals to which they are appointed after their retirement as in that event only, they would be able to substantially improve upon the system. If an incumbent is to retire within 2 to 3 years of his joining a Tribunal, then by the time he might have full acquaintance of its working he would be retired, surely then he shall not be able to contribute much in advancing and improving upon the working of the Tribunal.

For selection and appointment in Tribunals, a set procedure is prescribed where the time spent in inviting applications up to the selection and then clearance from the Government at various levels, is six months to a year. The past experience clearly shows that whenever eligibility for appointment as Chairpersons and Members of Tribunals includes former or sitting Judges of High Courts or the Supreme Court or Chief Justices of such courts, there may not be more than 5 to 7 instances where the sitting judges may have, during their tenure of service, opted to become Chairpersons or Members of Tribunals. They seek consideration for such appointment either on the eve of their retirement or after their retirement and if the period of selection and appointment would take time, they might not serve for more than 2 to 2 ½ years, where the retirement age is 65 or 68 years.

It would manifest that by and large, the eligibility for appointment as Chairperson is of those who are or have been Judges of the Supreme Court, Chief Justices of High Courts or Judges of High Courts, but the retirement age in different Tribunals is different viz. 65 years, 67 years, 68 years and in some it is 70 years. There is no uniform prescription of age of retirement. Judges and Chief Justices of High Courts have the same retirement age of 62 years. It is too well known that functions and duties carried out by the Judges at any level are the same. There has already been a lot of debate as to whether the retirement age of the Supreme Court and High Court Judges should be the same for the precise reason that the functions and duties carried out by them are of the same nature and therefore, if the age of retirement of a Supreme Court Judge is 65 years, the same should be so with regard to High Court Judges. If the Judges or Chief Justices of the High Courts who retire at the age of 62 years, wish to take up assignment in Tribunals, which is as mentioned above, taken by them after their retirement, their work period in Tribunals may be 2 to 3 years. Obviously, when Judges of the Supreme Court are appointed in any Tribunal, their retirement age must, at the least, be 70 years, their date of retirement as a Supreme Court Judge being 65 years.

A view has been expressed that there should also be no difference in the retirement ages for Chairpersons and Members, who come from the judicial system, i.e. High Courts or the Supreme Court, and it should uniformly be 70 years. A distinction may be made in so far as Members are concerned from another perspective. Members in Tribunals have two streams – judicial and administrative. The retirement age from the Government, of those who join the administrative stream is 60 years and the terms of 5 years as a Member of Tribunal may be sufficient in their case. However, no distinction can be made in the retirement age of the Members – whether coming from judicial stream or administrative stream. Irrespective of the stream, the retirement age needs to be uniformly fixed. It may also be mentioned that whereas Judges are so many, Chief Justices of High Courts are a few. On number of occasions, appointments of Chairpersons had to wait for want of availability of the Chief Justices or Judges of Supreme Court, but in so far as Judges of High Courts are concerned, there has been no problem of that kind. It would thus be expedient and in the fitness of things to have a uniform retirement age of Chairpersons of Tribunals as 70 years and uniform age of retirement of Members as 65 years.