The retirement age of judges in the High Court and Supreme Court is determined by the Constitution of India. Originally, the retirement age for High Court judges was set at 60, but it was increased to 62 in 1963 through the Constitution (Fifteenth Amendment) Act. In contrast, judges of the Supreme Court are allowed to retire at the age of 65. The appointment of judges in both the High Court and Supreme Court is done by the President of India.
- The process for appointing a Chief Justice of a High Court involves consultation with the Chief Justice of the Supreme Court and the State Governor. To be eligible for the position of a High Court Chief Justice, a person must be an Indian citizen and have served as a Judge in Indian subordinate courts for at least ten years.
- If the Parliament wishes to remove a Judge of the High Court, it can pass a petition against them with an absolute majority and a two-thirds vote of the members present and voting in both Houses sitting separately. The President has the authority to revoke the motion.
- Resignation by a Judge is a means to vacate the bench, and the President receives the Judge’s letter of resignation.
- As of September 2020, India had 25 High Courts, and among the newly established ones were the Telangana and Andhra Pradesh High Courts.
- Notably, the Calcutta High Court is the oldest High Court in India.
Should the retirement age of Judges be increased?
The Venkatachaliah Report, issued in 2002 by the National Commission to review the working of the Constitution, recommended increasing the retirement age of High Court Judges to 65 and Supreme Court Judges to 68 years.
In 2010, the Constitution (114th Amendment) Bill was introduced to raise the retirement age of High Court judges to 65. However, it was not considered in Parliament and lapsed with the dissolution of the 15th Lok Sabha.
Justice Kurian Joseph of the Supreme Court also recently suggested raising the retirement age of higher judiciary judges to reduce case pendency. Nevertheless, some argue that 65 years is an appropriate age to retire due to mental and physical wear and tear that can manifest at that age.
Currently, out of 1,079 approved judges in 24 High Courts (excluding the Andhra Pradesh High Court), only 695 positions are filled.
The Case in Western Democracies
In many Western liberal democracies, a retirement age of around 70 for judges is common, with some opting for life tenures. For instance:
- Judges in the Supreme Court of the United States and constitutional courts in Austria and Greece serve for life.
- Belgium, Denmark, Ireland, the Netherlands, Norway, and Australia have a retirement age of 70 for judges.
India has one of the lowest judge-population ratios globally, with only 19.66 judges per million people, as compared to higher ratios in other countries.
To tackle the massive backlog of cases, there is a need to increase the number of judges in the system. According to the National Judicial Data Grid data, there are millions of pending cases in subordinate courts, High Courts, and the Supreme Court.
The legislation allows retired High Court and Supreme Court judges to serve in tribunals till the age of 70 as chairman and 65 as members, indicating that there is no reason for early retirement.
Increasing the retirement age will bring benefits of experienced senior serving judges. It will maintain a strong talent pool of experienced judges. New judges can be appointed without displacing existing ones.
Addressing the problem of mounting arrears and acting as a buffer against increasing litigation. It will make post-retirement assignments less attractive, strengthening the rule of law and judicial independence, essential for sustaining democracy.
Addressing the backlog of cases can be aided by increasing the retirement age of judges of the Supreme Court and High Courts, with the option of voluntary retirement before reaching superannuation, following the practice in Zimbabwe. However, merely increasing the retirement age will not be a complete solution to the issues in the Indian Judiciary.
Other concerns, such as lack of transparency in judicial appointments, under trials, and inadequate information and interaction between the courts and the public, must also be tackled.