A filter at 62https://indianexpress.com/article/opinion/columns/a-filter-at-62/

A filter at 62

A bill extending judges’ tenure can impose accountability too.

The Union law minister has introduced a bill in Lok Sabha for amending Article 217(1) and 224(3) of the Constitution. By the former article,as it is now,every high court judge shall hold office until he attains the age of 62,and by the latter no additional or acting judge shall hold office after attaining that age. The present bill proposes to amend the words “sixty-two” to “sixty-five” in both articles. It is the by-product of a cabinet decision based on the recommendations of the 39th report of the parliamentary standing committee on personnel,public grievances,law and justice.

At the time of making the Constitution,the average lifespan of an Indian citizen was 45. This would have weighed very much with the Constitution-framers when they fixed the retirement age of high court judges at 60 and Supreme Court judges at 62. With the improvement of longevity since,Parliament in its wisdom realised the need to enhance the retirement age of high court judges to 62 and judges of the Supreme Court to 65. This was done about half-a-century ago.

In the present scenario,high court judges are very often,after retirement,appointed as members or chairmen of various tribunals,commissions or other committees,which require much legal and judicial experience. That apart,a good number of retired judges resume practice as advocates either in the Supreme Court or in high courts in which they were not judges. It might be in this background that the law commission has repeatedly recommended the further enhancement of the retirement age of judges. But this time the proposed amendment seeks to uniformise the age of judges of the high courts and Supreme Court at “sixty-five”.

Some reasons are advanced for enhancing the age of superannuation of high court judges without a corresponding enhancement for judges of the Supreme Court. I do not propose to deal with the soundness or otherwise of making the retirement age of the judges at both tiers uniform. My endeavour is to bring to the notice of Parliament the need to use this opportunity to prevent non-performing judges and judges whose integrity is under a cloud from benefiting from the enhancement.

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I could overhear two divergent reactions from members of the bar when the news of the proposed bill was flashed in the media. One is a sense of relief and exhilaration that a catena of judges nearing superannuation (whom the bar regards as role models) would continue for three more years. The other is an expression of frustration that some non-performing judges (whose exit by superannuation was eagerly awaited) will have to be borne for three more years. Can these divergent reactions be reconciled?

A few years ago,the retirement age for district judges was raised to 60. This was done through a judgment delivered by the apex court. But then a rider was incorporated that the high court shall examine individual cases on merit,to identify those who are deserving of an extension beyond the erstwhile barrier. I have gathered that this filter has been frequently invoked by some of the high courts to weed out deadwood and persons of questioned rectitude. The principle embodied therein can profitably be adopted in the case of high courts too,particularly when Parliament is contemplating granting extended tenure at that level. It is a stark reality that in almost all high courts there are judges (though their number is not great) who do not have the confidence of the bar,or the public either,due to want of integrity or incapacity to deliver judgments.

The present mechanism for impeachment of judges as provided in the Constitution has been proved to be practically otiose,if not needlessly protracted. Now Parliament gets a fine opportunity to transmit the message to the tainted judges that the Constitution does not approve their continuance in office at least beyond the age of 62.

It may then be asked when,and which authority,will find out who among the judges are to be denied this extension. The answer to this can easily be discovered,more so at a time when alternative mechanisms for the selection and appointment of judges are seriously being deliberated upon by the bar and MPs. I do not think it is a difficult task for the law ministry to evolve suitable machinery or standards to identify judges who are under a cloud because of doubtful integrity or performative nonfeasance.

The writer is a former judge of the Supreme Court

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