Let HC Judges Retire When SC Judges Do, At 65

Let HC Judges Retire When SC Judges Do, At 65

This will cut pendency, plus historical reasons for different retirement ages no longer hold

Arunav Kaul

08.10.2021

“How is this irrational? There has to be some reason for it,” said the Supreme Court in April in response to a petition which sought to increase the retirement age of high court judges from 62 to 65, to bring it at par with SC judges. The petition contended that the difference in the retirement ages between the two constitutional courts of the country is irrational and arbitrary and hence these must be made uniform.

The case was finally withdrawn by the petitioner but it has raised an important issue: Are the retirement ages different to show that SC judges are more important than HC judges or are there deeper historical reasons? Do the reasons still subsist and or is the time ripe to make the retirement ages uniform?

The divide has pre-independence roots

The Government of India Act 1935 was one of the first formal documents that categorically laid down the retirement age for judges. It formally established the Federal Court of India, the predecessor of the present Supreme Court of India, and laid down the retirement age at 65 years for judges of the Federal Court and 60 years for judges of HCs.

Why such a gap? The answer lies in the report of the Joint Committee on Indian Constitutional Reform set up before the passing of the 1935 Act. It opined that having a different retirement age would be necessary to secure the services of the judges from HCs.

Abhinav Chandrachud has further explained how it was contended that senior judges from HCs who were already in an established position in various prestigious courts would not be willing to relinquish the rest of their tenure for a junior position with an uncertain future at the newly established Federal Court. Hence, the additional five years were added as an incentive.

The different ages concretised in the coming years. Although the initial draft of the Constitution stated that judges of HC would retire at 60 or a higher age not exceeding 65 years based on the law fixed by state legislatures, this was eventually amended. Given past practices of retirement and health concerns at an old age, retirement age for HC judges was fixed at 60.

But SC-HC equation has changed since then

Having an age gap in retirement certainly made sense in the earlier days of SC. For instance, George H Gadbois Jr notes in his book that Justice KC Das Gupta was one of the first chief justices from a presidency HC to accept the nomination to SC in 1959 nearly a decade after the establishment of the latter court. Other chief justices showed a “reluctance to leave the glamour of a prestigious post to become the most junior SCI judge”.

However, today SC is one of the most prestigious institutions in the country, elevation to which is also seen as a matter of great prestige. Moreover the 14th Law Commission recommended even way back in 1958 that rules could be established to make it a duty for judges of HCs to accept the offer to serve at SC. Subsequently, a constitutional amendment in 1963 increased the retirement age of HC judges to 62. This was done soon after an increase in the retirement age of central government employees from 55 to 58 based on the recommendations of the Second Pay Commission which looked at health and life expectancy.

Give HC judges more time on the job

Years later in 2010, another constitutional amendment bill was introduced in Parliament to increase the retirement age of HC judges from 62 to 65. The standing committee on the bill pointed out that increasing the retirement age would impact both the vacancies and the high pendency of cases. This bill eventually lapsed but increasing the retirement age of HC judges would indeed reduce pendency, as well as provide judges ample time to spend on the bench.

On average, as of September 1, HC judges are being appointed at the age of 51. This provides them with a little over a decade before retiring. Increased retirement age will allow them to adjust to the rigmaroles of the new position and discharge their duties for a longer duration.

The bottomline is that when historical reasons are no longer relevant, it is best to amend policies so they reflect contemporary needs. So government should seriously look into the possibility of making the retirement age uniform for judges of HCs and SC. This would be the prudent approach.

The writer is a human rights lawyer