Wednesday, November 21, 2012

Of Judicial Retirement

Why is the mandatory retirement age for Supreme Court judges and High Court judges different in India? I addressed this question in a paper published in the EPW last week. Supreme Court judges in India retire at the age of 65, while High Court judges retire at the age of 62 (earlier, this was 60). In my paper, I argue that the additional years in service were meant to serve as an incentive to get senior High Court judges and High Court Chief Justices to agree to give up their positions of seniority on their respective High Courts, in exchange for a junior position on the Supreme Court of India. I conclude by arguing that this reason no longer holds true today: senior High Court judges and Chief Justices no longer decide to become Supreme Court judges because of the few additional years for which they might continue in service, but because of the intrinsic prestige and status of the post itself.

3 comments:

Nick Robinson said...

Abhinav, I like your piece and think the argument you make is strong. However, what's your sense about why this hasn't happened yet? It seems like people have been calling for an increase in the retirement age for some time. What's blocking it? Is it the feeling that this reform would have to be packaged with other, more controversial, reforms? Are some of the Supreme Court judges against it? Is it parts of the government, and if so, why?

Abhinav Chandrachud said...

Many thanks, Nick. I don’t know the answer, but I can make a few guesses. My first guess is that the age of retirement at the High Court cannot be increased without packaging that increase with a coherent policy on the length of terms to be served by judges in the Supreme Court. For example, if High Court judges retire at 65 (instead of the present 62), that would mean that a High Court judge can theoretically be appointed to the Supreme Court at the age of 64, giving him/her only 1 year in office at the Supreme Court. At present, the "retirement age-gap" ensures that Supreme Court judges serve at least 3 years in office (consider that retired High Court judges have seldom been appointed to the Supreme Court, especially in the last 2 decades). To prevent that from happening, an increase in the age of retirement at the High Court level would have to be accompanied by a policy on judicial tenures on the Supreme Court, which is difficult given the current terrain of collegium-driven judicial appointments. Of course, this problem could be overcome by increasing the age of retirement at the Supreme Court too – making Supreme Court judges retire at, say, 70, and High Court judges at 65, but then that would still be problematic – the “retirement age-gap” would persist, and treat two of India’s highest constitutional office-holders unequally, perhaps even unfairly. My guess is also that any increase in the retirement age for the judiciary might have to be accompanied by a similar change in the retirement age in other government services, which would make this too complicated an exercise. However, these are just guesses.

Nick Robinson said...

Thanks Abhinav. That explanation does make some "sense" although it certainly strikes me there are plenty of examples to look at around the world to get out of this. Also, I suppose it might trigger lower court judges wanting a later retirement age too (which, again, would seemingly make sense).