Opinion - Leader Page Articles

Retirement for judges

By K. Subramanian

One of the methods by which the efficiency of the judicial system in India can be raised is by increasing the retirement age of Supreme Court and High Court judges.

ARTICLE 124 (2) of the Constitution of India provides that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts as the President may deem necessary for the purpose and shall hold office until he attains 65 years of age.

Article 217(1) provides that every High Court judge shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court. Prior to the enactment of the Constitution 15th Amendment Act, 1963, the retirement age was 60 years for High Court judges, but now it is 62 years.

The National Commission to review the Working of the Constitution has recommended that the retirement age of High Court judges be increased to 65 years and that of Supreme Court judges to 68 years. The Committee referred to the Arrears Committee (1989-90) report that said, "failure on the part of the Executive to produce adequate number of competent judges from time to time has substantially contributed to the mounting arrears."

It is common knowledge that judges with long years of experience are able to dispose of more cases quickly. Now a High Court judge serves for about 10 to 12 years given the increased longevity of human life, and therefore it is safe to assume that a judge would keep good health in his late 60s. It would be a national waste of long years of experience if a judge is retired when he/she is at the peak performing level physically and mentally.

According to some jurists, there have been several instances of learned judges who reached their highest level of efficiency and performance just when they reached their 60s and their retirement was thus a big loss to the judicial machinery. It is therefore a million dollar question why High Court judges should be retired even while they are physically and mentally fit to discharge their constitutional obligations.

The retirement age of 62 for High Court judges and 65 years for Supreme Court judges is too low and is unjust inasmuch as they are retired at a time when they are at the peak of their judicial performance. We have come across three instances when High Court judges have voluntarily resigned on health grounds even before they attained the age of retirement of 60 years (as it was originally till 1963).

The late S. Subramania Iyer of the Madras High Court felt compelled to resign on the ground of failing physical fitness even before he completed 60. His eyesight was failing and his health was also a little shaky. The entire body of his friends and admirers tried to dissuade him from taking the step and the then Chief Justice, Sri Arnold White, repeatedly requested him to continue, suggesting that he take the work somewhat lightly to suit his physical condition, but Subramania Iyer said that if he continued in office and took his work even a bit lightly, it would be dishonest and also against his conscience. He insisted on resigning even though it meant that the pension he would get would be £400 less a year than he would be entitled to on completing his full term. However, this aspect had not mattered to him.

Yet another judge of the Madras High Court who retired before the completion of his 60th year was the late K. Sundaram Chettiar. Ramesh Chandra Mitter of the Calcutta High Court set an example that remains unparalleled. He made an appointment to grant audience to some junior advocates at 10 a.m. on a particular day because they could not get his audience the previous day in view of the senior advocates having the priority. Unfortunately, he forgot to keep the appointment and when he realised it, it was too late. He promptly submitted his resignation on the ground that a judge with failing memory should not continue in office. He had 10 years still to serve but did not hesitate to sacrifice it on a matter of principle. Even the then Chief Justice of the Calcutta High Court, Rankin, could not make him change his decision.

In India, the backlog of cases in courts has assumed serious proportions. Increase of judge strength has failed to cope with the backlog. The former Chief Justice of India, E. S. Venkataramiah, in the case reported in R. L. Gupa vs Union of India (1988) 2 SCC 262 observed: "Peace and tranquillity that will result from quick disposal of cases is much more valuable than the economic goods produced by factories. Delay in disposal of cases affects the gross national product (GNP) adversely. In fact, peace and tranquillity will help in greater production of economic goods. Quick disposal of cases will also save millions of man hours which are now being wasted near the courts in India."

The solution appears to be to increase the retirement age of the High Court judges to 70 years instead of 62 years. Similarly, the retirement age of Supreme Court judges should be made 75.

In the United States, Supreme Court judges hold office for life. The U.S. Congress has passed a law providing for voluntary retirement at full pay on or after attaining 70 years of age and after the judge has held the Commission for at least 10 years. In the U.S. there have been judges even above 70 years of age who did excellent work. A rather interesting fact about the American Supreme Court judges is that the youngest was 32 at the time of appointment and the oldest 69.

In England, judges of the High Court and Court of Appeal held office during good behaviour. The retiring ages of the High Court and Circuit judges are 75 and 72 respectively by virtue of Section 3 of the Judicial Pension Act, 1959. The Act provides for compulsory retirement of all judges of the Supreme Court and the Lords of Appeal at the age of 75.

In the U.S. on reaching 70, a Supreme Court judge who has served for 10 consecutive years may request release from active duties but continues to receive full salary, in consideration of being subject to recall to duty in the lower Federal Courts.

Articles 124(2) and 217(1) of the Constitution were intended to ensure security of service for Supreme Court and High Court judges respectively.

The nation's requirement is speedy justice for the citizen by letting the judges serve the country longer, so that their knowledge and experience is put to better use. On the occasion of his 63rd birthday celebrations in New Delhi, the former Chief Justice of India, B. P. Sinha, criticised the makers of our Constitution for having made it incumbent on High Court judges to retire on completing 60 years. The retirement age for the High Court Judges was since raised to 62 years, but that of the Supreme Court judges remained 65.

Lord Bryce once observed that there was no better test of the excellence of a Government than the efficiency of its judicial system. One of the methods by which the efficiency of the judicial system in India can be raised is by increasing the retirement age of Supreme Court and High Court judges. Experience has shown that mere increase of the judge strength has failed to cope with the backlog.

(The writer is former Advocate-General of Tamil Nadu.)

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