Qualty of judge-- ------------------------- For judicial office to attract the best talent, raise judges salaries and their age of retirement. The National Judicial Appointments Commission (NJAC) Act, 2014 seeks to improve the quality of judges of the Supreme Court and the high courts by changing the present system of appointment for judges. Along with this major change, it is imperative to make two other vital changes in the service conditions of judges of the higher judiciary to make the offices of judge of the SC and high courts attractive enough to secure the best talent from among lawyers and judges. The two most important changes required are: First, to raise the salaries and emoluments of judges of the higher courts; and second, to raise the age of retirement of judges of the SC and high courts. Unless these measures are undertaken simultaneously by the government, even with the enactment of the NJAC law, the judicial office will not attract the best talent, as it does in other countries. Historically, judicial salaries in India have been niggardly. For 36 years after the Constitution came into operation in 1950, judicial salaries remained unrevised. Salaries were first increased in 1986. In 1998, they were further raised. At present, the chief justice of India is paid Rs1,00,000 per month and other SC judges are paid Rs 90,000 per month. The chief justice of a high court is paid Rs 90,000 per month and other high court judges are paid Rs 80,000 per month. Even taking into consideration the perquisites attached to the office of judge, judicial salaries have become unrewarding and unattractive to lawyers in good practice. In the past, in India as in the UK, lawyers in good practice took judgeships as a career and as a matter of honour, even though the rewards at the Bar were higher. Today, judicial salaries do not stand comparison with the earnings of lawyers in good practice, resulting in fewer competent lawyers taking up judgeships. It is ironic that fledgling law graduates today are offered higher salaries by law firms than the salaries paid to judges. The late eminent jurist H.M. Seervai had trenchantly observed: It may be said that we are a poor country and cannot afford to pay high salaries to judges. I would like to record my opinion that only an extremely wealthy country can afford the luxury of an ill-paid judiciary, and that the greatest sufferers of . an ill-paid judiciary would be the Union and state governments, because today the biggest litigant in India is the state. The correct remedy is to make a judicial career sufficiently attractive for lawyers of the highest standing. Winston Churchill had said that the payments made to other civil servants cannot be equated with the salaries of judges. He said: The service rendered by judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct. The bench must be the dominant attraction to the legal profession, yet it rather hangs in the balance now, and heavily will our society pay if it cannot command the finest characters and the best legal brains which we can produce. In the UK, the problem of judicial salaries becoming unremunerative with the cost of living is taken care of by a revision by the Senior Salaries Review Body, which recommends increases in judicial salaries from time to time. We are in serious danger of undermining the standing of our higher judiciary if judicial salaries are not raised. In 2007, Chief Justice John Roberts of the US Supreme Court described the then levels of judicial salaries in the US as a constitutional crisis with much less justification. Another deterring factor in accepting a judgeship in India is the retirement age of 62 years for a high court judge and 65 years for an SC judge. At these retirement ages, judges are in full possession of their faculties but are constitutionally prevented from active legal practice. In the case of a high court judge, on his retirement, he can only shift to the SC to practice as a lawyer, which few retired high court judges can do. High court and SC judges, on retirement, look out for positions given to them by government or seek to be an arbitrator or to give opinions. Presently, on average, an SC judge is appointed for a tenure of four to six years before he retires at 65. In such a short tenure, even the ablest judge does not have the time to master the law and acquire the knowledge required of an SC judge. In leading supreme courts abroad, the retirement age is above 65. Thus, the retirement age for judges of the High Court of Australia (Australias apex court) is 70, of the Supreme Court of Canada is 75, of the Supreme Court of Ireland is 70, of the Supreme Court of Israel is 70, of the Supreme Court of New Zealand is 68, of the Constitutional Court of South Africa is 70 or after 12 years of service, of the Supreme Court of the United Kingdom . is 75. Uniquely, there is no retirement age for judges of the Supreme Court of the United States, although judges, on their own, retire at an age of their choice. It is only in India and Pakistan that Supreme Court judges have to retire at the age of 65 years. The retirement age of a high court judge must therefore be revised to at least 65 years and an SC judge to 70. A constitutional amendment bill was sought to raise the retirement age of a high court judge to 65 in 2011, but it was not pursued, due to objections from the opposition. It is, therefore, imperative that these two vital changes are made, along with the implementation of the NJAC Act, 2014, to secure the best judges in the Supreme Court and high courts. The writer is a senior advocate at the Supreme Court, former solicitor general of India and advocate-general of Maharashtra
Posted on: Thu, 09 Oct 2014 10:45:21 +0000
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