The author is indignant at the proposal of the Law Commission to discriminate between the retirement age of heads of Tribunals and the retirement age of other Members. He argues that it is illogical to have different retirement ages for members of the same Institution. He, however, is in favour of a general increase in the retirement age and argues that retirement at an age when the Judges’ intellectual faculties are at their peak results in a sheer waste of abilities, expertise and experience
The news reports announcing the probable fixation of retirement age of heads of Tribunals at 70 and Members at 65 prompts the reaction that the two limits of members of the same institution is illogical. There has to be uniform age limit for Judges, Members and Heads of Tribunal because all are discharging judicial functions.
The Law Commission of India in its Report No. 232 dt. 22-8-2009 has recommended that the retirement age of all heads of Tribunal may be raised to 70 Years and of members to 65, for the reason that there is no uniformity of retirement age for the heads of various Tribunals. In almost all the Tribunals the members and the heads of the Tribunal discharge similar judicial functions, hence, there is no reason for fixing the retirement age for the heads of the institution at 70 years and those of the members 65. The distinction if any, is invidious.
We are of the considered opinion that due to longevity or increase in life expectancy the age limit which requires to be increased in all judicial and quasi-judicial bodies / institutions from present age limit of 62 years to 68 years. There should not be any discrimination between the judges of Supreme Court, High Courts, lower judiciary and Tribunals in the matter of retirement age as all Judges and members perform similar duties and shoulder equal responsibilities.
At present the Judges of the Apex Court retire at the age of 65, whereas the Judges of High Courts and the Members of the ITAT (an institution with which our member are familiar) retire at the age of 62. Most of the Judges of the Apex Court after retirement render 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, etc., where the age limit is 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 no reason why the age limit should not be raised. If the Government can retain the services of Judges for another three years, it will be a great service to the nation and the pendency of cases before High Courts can be reduced.
In India many professionals join the judiciary with the intention of serving the nation and not with the intention of getting a permanent job in the Government. A fresh law graduate when he joins a multinational gets emoluments more than that of a sitting Judge of High Court, who may have put in more than 20 years of practice in law. Experience of a Judge and his knowledge is an asset to the justice delivery system; hence it is in the interest of the nation to raise the age limit of Judges to 68.
At the inaugural function of the ITAT Tribunal Members’ Conference at Mumbai on 4th November, 2006 the then Hon’ble Law Minister Mr. H. R. Bharadwaj stated that he is in favour of raising the retirement age of members of the ITAT from present age of 62 to 65; but, till date there is no move in this direction. Speaking at the fifth national conference of the association of retired judges at Indore on April 21, 2007, the Chief Justice of India had said: “Superannuation of SC judges at 65 is a sheer waste of their abilities, expertise and experience, since that’s the age when their intellectual faculties are at their peak.”. We are of the considered opinion that this is one of the important judicial reforms which is need of the hour. It is important to retain the knowledge and experience of the judiciary to deliver speedy justice. Any improvement in justice delivery system will work to the advantage of better law and order situation.
The sanctioned strength of the Judges of the Apex Court is 26, that of 21 High Courts is 895 and Members of the ITAT is 126. Hence, it cannot be viewed as a vast opportunity in the employment sector yet retention of less than 1,000 persons will have multiplier effect on justice delivery system. 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 and Supreme Court at the age of 70.
Now that the Government has laid down the healthy tradition that the members of Central Excise, Customs and Service tax Tribunal and the members of Income Tax Appellate Tribunal after retirement cannot practice before the Tribunal, it is essential that the age limit of members of the Tribunal may be raised to 65 years, so that they are gainfully occupied for the good of the litigants and society.
Speedy justice is the need of an hour for the development of the nation. The assessee should know his tax liability with certainty within reasonable time say of two years of assessment. In many matters the assessee may succeed before CIT(A), Tribunal, High Court still the department may file an appeal before the Apex Court. If ultimately the apex court decide in favour of the department after 10 years, the liability of the assessee to pay tax and interest may exceed the assessed income. Therefore endeavour should be to attain the stage of finality of the assessment within a reasonable time. As per recent news reports there is shortage 265 judges in High Courts. Hon’ble Law Minister Dr. M. Veerappa Moily in his recent interview on 3rd April, 2010 (Saturday, Financial Express) stated that “we are now evolving a system by which I would like to see that (within) six months from today, all vacancies should be filled up and we are working out certain parameters, certain methodology by which, in consultation with the judiciary, we can do so.”
There are shortages of judges in many High Courts to decide the taxation matters, hence, it may be desirable to elevate the members of the ITAT to the High Courts so that the taxation matters can be decided expeditiously. There are large number of members who are knowledgeable and their integrity is beyond reasonable doubt.
It is time to initiate debate on the proposal of the increase of the age limit of the Supreme Court Judges from 65 to 68, and of High Court Judges and members of the ITAT from 62 to 65. The Federation has sent a representation earlier to increase the age limit of judges of Apex Court, High Courts and Members of ITAT.
A thought for debate and consideration.
Dr. K. SHIVARAM
Reproduced with permission from the AIFTP Journal, April 2010