Increase retirement age of judges of SC, HC: Ashwini Kumar Upadhyay writes to PM Modi

Advocate Ashwini Kumar Upadhyay has written to Prime Minister Narendra Modi for increasing the retirement age of judges of the Supreme Court and High Court. The open letter by Upadhyay cites several reasons for considering the proposal including the pendency of cases.

Below is the text of the letter:

“I hope this letter finds you well at this time of COVID-19.  I wish to remind you that on 25.10.2009, at the Conference of Chief Justices and Chief Ministers, the Members of the Supreme Court, High Courts, Ministry of Law, BCI and faculty of Law Institutes gathered for “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays”. And, the then PM agreed to reduce the pendency from 15 to 3 years. However, it is very unfortunate that Centre has neither taken appropriate steps to reduce the pendency nor to increase the retirement age of Judges. It is necessary to state that the Bill, to increase the retirement age of judges of High Courts, was introduced in 2010 but lapsed in 2014 due to dissolution of Loksabha. It is also necessary to state that on 22.6.2019, the then CJI Sh. Ranjan Gogoi also wrote a letter to increase the retirement age of High Court judges to 65 years.

The injury caused to citizens is extremely large because due to early retirement, fine and competent advocates are not willing to become judges of the Higher Courts. Therefore, the rule of law guaranteed under Article 14 and right to speedy justice, guaranteed under Article 21 is being brazenly offended. I also submit that to maintain the autonomy of High Courts, the Centre must take steps to make the retirement age for High Courts – Supreme Court Judges uniform. If there is uniformity in retirement age, Judges of the High Court will discharge judicial work more independently and without any expectation to move the Supreme Court. Also, to minimize the apprehension of subordination between the Supreme Court and High Courts, it is appropriate to equate the retirement age of High Court Judge’s with Supreme Court judges.

The problem of delay in disposal of cases is not a new problem and has been in existence since longtime. But it has now acquired terrific proportions. Huge backlog has not only put the judicial system under strain but also has shaken the confidence of the people. Capable Lawyers don’t want to become judges of High Courts because instead of continuously giving valuable services to the nation, High Court Judges are compelled to retire at a very early age i.e., 62 years. The bench loses tremendous legal experience when Judges are forced to retire before their septuagenarian year and the Department Related Parliamentary Standing Committee on Personal, Public Grievances, Law and Justice has very correctly referred to the problem caused by early retirement of judges.

Uniformity in the retirement age of Judges will create a pool of good judges in High Courts, which will be extremely useful for deciding the cases of extreme importance or which require deep & thorough knowledge for interpretation of the Constitution. Increasing the retirement age and making it uniform for the High Courts and Supreme Courts will not only strengthen the rule of law, which is an integral part of Article 14 but also secure the fundamental right to speedy justice, guaranteed under Article 21. Uniformity in the retirement age of Judges will not only ensure the independence and separation of judiciary in spirit of Article 50 but also bring the Indian Justice System at par with the worldwide norms & standards of Higher Courts of developed countries viz. US, UK, Canada etc.

The last increase in the retirement age of the High Court judges was made in 1963, when it was raised from 60 to 62 years. The latest proposal to increase the retirement age was mooted in 2008 and Cabinet gave its nod to raise the retirement age of High Court and Supreme Court Judges in 2010. However, due to political fighting, it was put on the backburner. It is pertinent to state that in developed countries, the retirement age of Higher Court Judges varies from 70-80 years and in some countries, they work for lifetime. For example, Judges retire at the age of 75 years in the UK and Canada and at the age of 70 years in Australia, Netherlands, Ireland, Belgium, Norway. Moreover, the Judges work for a lifetime in the US, Russia, New Zealand and Iceland, subject to their physical-mental fitness. Uniformity in retirement age is not only necessary to reduce pendency of cases but also essential to attract and retain the best legal talent in the bench. To reduce judicial and procedural error, India needs more experienced Judges. But the Centre neither increased the retirement age of the Judges, nor implemented the Resolution dated 25.10.2009, to reduce the pendency from 15 to 3 years.

The Centre has also not implemented the historic Judgments from First to Fifth Judges Case and recommendations of the Parliament Standing Committee and Law Commission of India in letter and spirit. Various reports on judicial Reforms have been submitted by the Law Commission after in depth study, which have dealt with various aspects of Law, substantive & procedural. Law Commission has addressed the issue in several reports since 1955: the 14th 38th 78th 79th 80th 117th 120th 121st 124th 125th 154th 139th 197th 221st 222nd 229th 230th and 245th reports dealt with issues of delay, pendency and arrears. But the Centre has not implemented them yet. A number of Committees were constituted to examine the problem of delay and the first Committee was Justice Rankin Committee. Since then, several Committees have put forth recommendations. These include the PRS Legislative Research, Pendency of Cases in Indian Courts, Justice S.R. Das High Court Arrears Committee 1949, The Trevor Harris Committee in West Bengal (1949), the Wanchoo Committee in Uttar Pradesh (1950), Justice J.C. Shah Committee (1972), Satish Chandra Committee (1986) and Malimath Committee (1990) but Centre did nothing to implement the recommendations.

Keeping in view the above stated facts and circumstances, I request you to take appropriate steps to increase the retirement age of High Court and Supreme Judges to 70 years.
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