Dispensation of justice is a divine act and is the prerogative of the judiciary. In our sacred Constitution, law and order is entrusted to the States. Chapter V deals with “The High Courts in the States”. Fixation of the strength of a High Court is an executive function, which is to be exercised on the advice of the Council of Ministers. Scheduled strength of the High Court judges is inadequate and does not commensurate with the pending litigation, causing piling up of the matters for long years. Necessity is of 70 thousand judges as against 44 thousand suggested by the Law Commission.

Quite a large number of under-trials are suffering in the shabby jails and lead a precarious life; many constitutional, civil, criminal, revenue lis hang over for years against expeditious disposals forcing them to adopt illegal violent measures; tax, debt recovery matters cause loss to exchequer so much so that bank loans running in crores remain unrecovered and become bad debts etc. It is causing anarchy among the citizens and their faith in the judiciary is shaken. Stern attitude of the judiciary is becoming ineffective and money and muscle power is playing havoc.

Hon’ble judges and subordinate judiciary is efficient, manned by men of integrity, work day and night diligently at the cost of their personal and social life, without adequate infrastructure facilities and aid and assistance of proper staff. Have to lead a pious life with obstructions from different corners.

Hon’ble Mr. Justice T. S. Thakur, Chief Justice of India, expressed his lament at the Conference of Supreme Court Judges, Chief Justices, Prime Minister, Chief Ministers, Law Ministers etc. How could he tackle with the pendency with inadequate strength and above all more than 50% vacancies? Process of appointment of judges is an integrated participatory consultative process for selecting the best and most suitable persons with integrity, knowledge and experience. Executive plays a vital role. Justice Thakur revealed on 8-5-2016 that 170 recommendations of the Collegium are pending issuance of warrant for the long time. The Union Government has drafted Memorandum of Procedure which is pending before the Collegium. In my view in the guise of transparency we are making procedure cumbersome and time consuming. With so many checks and balances it takes inordinate time in selection and elevation, causing unrest.

Age of Judge of High Court

Article 217 of our Constitution fixes age of sixty two years w.e.f. 6-10-1963 and remains the same for the last over 50 years. In the United States there is no age of retirement for federal Judges. They are tenured posts. If a federal Judge feels that by reason of old age he cannot function, he will receive the last drawn salary as pension for the rest of his life. In the United Kingdom and Canada, Judges retire at the age of 75. In Australia Judges of Federal Court and Supreme Court retire at the age of 70. Similarly in Japan Judges of High Court retire at the age of 65. The then Hon’ble Union Law Minister, Shri H. R. Bhardwaj, while addressing on 4-11-2006 stated that the Government will increase the age limit to 65. But no concrete steps have been taken since 10 years and it remains at 62 since 1963.

At present the Judges of the Apex Court retire at the age of 65, whereas the Judges of High Courts retire at the age of 62. Most of the Judges of the Apex Court after retirement render laudable service to the nation by chairing various forums, like Authority for Advance Rulings, till the age of 68 years. Similarly, the Judges of the High Courts also serve as Chairman, President or Members of various quasi-judicial forums, like Administrative Tribunals, Customs Excise and Service Tax Appellate Tribunal, SEBI Tribunal, Income Tax Appellate Tribunal etc., where the age limit is 65. While functioning as Chairman of Human Rights Commissioner age is above 65. When the Judges can render service as Chairman of various judicial forums and render the Judicial service which they were rendering earlier on the bench there is strong reason to increase the age limit of retirement from 62 years to 65 years.

Reappointment of Retired Judges

Article 217 read with 224 of the Constitution provides for appointment of additional or acting judges when there is arrears of work. However under Article 224(3) superannuation age remain at 52. Article 224A permits to request any person who has held the office of a Judge of that Court or any other High Court to sit and act. Such appointee shall be entitled to such allowances as the President may determine. On consent such retired judge shall have the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a judge of that High Court. Though this power vests since 1963, but hardly one or two have been reappointed over 53 years.

Article 217(2) states that a person shall not be qualified for appointment as a judge of a High Court unless (i) is a citizen of India; and (ii) has held a judicial office for at least ten years; or (iii) has for at least ten years been an advocate. Normally an advocate is considered for elevation on meritorious performance, in-depth knowledge, vast experience and expertise for over 20, years apart from integrity and moral character. Similarly a judicial officer having functioned for about 30 years is considered for elevation based on seniority and merit. By the time an Advocate or Judicial Officer is elevated, attains an age of 45 years or 60 respectively, leaving a period of about 15–17 years or 2–3 years respectively, for functioning as a Hon’ble judge. On retirement such judge on account of restriction put under Article 220 cannot practice, plead or act in the High Court, where he functioned as a Judge, but can plead or act before Supreme Court or other High Courts.

It is noticed that vast experience acquired over 35–40 years in legal profession and in judiciary, having tailored life accordingly, can hardly endeavour to practice before the Hon’ble Supreme Court or/and other High Courts. Looking to the rise of life span and their good health, the golden years after superannuation is a clear waste or non-utilisation of precious asset and human resource. In such a scenario it is highly desirable rather a necessity, to increase the age of 65 or in the alternative to reappoint retired judges under Article 224A for at least 3-5 years and gain from their expertise and vast knowledge. It would ease the existing arrear of cases, without any additional expenditure. It is high time to consider seriously this aspect.

Elevation of Members of the Tribunals

Members of Income Tax Appellate Tribunal and other Tribunals are selected and appointed, having vast experience, expertise on the relevant laws and integrity. After functioning over years their expertise is further sharpened and they work under judicial discipline. Normally they retire at 62 and thereafter have to join legal profession or any Corporate firm. It is equally desirable that on attaining age of 58 years, they be considered for elevation as Hon’ble judges in High Courts. Experience shows few have been elevated and have disposed off matters expeditiously and correctly with quick disposal. It would be in national interest to consider their eligibility and elevation as Hon’ble judges. Such persons should be permitted to sit in tax benches with other senior judge with roaster of their expertise.

Observations & Suggestions

For efficient functioning of democracy, it is highly desirable that the Legislature and the Executive understand indispensing necessity of the judiciary. Elevations and appointment of constitutional functionaries and subordinate judiciary need immediate attention of the other two wings. For safety, security, liberty of the citizens scheduled strength be appropriately enhanced, with elevations and appointments with expedition. Infrastructure be developed. Working facilities be provided, to enable the Hon’ble judges and subordinate judiciary to work in congenial atmosphere with due respect and reverence. Any expenditure incurred on the judiciary is not a waste but would be vital step towards attainment of objectives enshrined in the preamble and the Constitution. Confrontation between the three wings inter se is unfortunate and the three wings must co-exist, respecting each other. Each wing must not transgress its jurisdiction.

(N. M. Ranka)
Senior Advocate
Member – Editorial Board

Posted in May.

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