Sir, I wish to offer a few remarks only with respect to fixing the age limit for the retirement of a High Court Judge. In article 193, as it was drafted, it was fixed at sixty but there was a further provision that a Judge may hold office at such higher age not exceeding sixty-five years as may be fixed in this behalf by law of the Legislature of the State. Now, the general trend seems to be that this latter portion should be deleted from this article, and opinion seems to have gathered round the fact that we should fix the age limit at sixty. Under the Act of 1935 the age limit was fixed at sixty, and there was no provision for extension. Because there was no provision for extension the Drafting Committee has said in their note below this article on page 87 of the Draft Constitution that in view of the different conditions prevailing in different States, the Committee has added the underlined words in article 193 so as to enable the Legislature of each State to fix any age limit not exceeding sixty five years. At the time when this Draft was prepared, probably the Drafting Committee was of the opinion that some provision should by made by which the age limit might be increased to sixty-five and they made it possible by adding the words “or such higher age not exceeding sixty-five years age may be fixed in this behalf by law of the Legislature of the State”. Subsequent to that, Sir, the Home Ministry made its own recommendations with respect to several provisions in the Draft Constitution. In there memorandum in this connection they said they were of the view that the normal age for retirement should be sixty for High Court Judges but that in exceptional circumstances the appointing authority may extend the service of an individual Judge of the High Court to a period not beyond the age of sixty-three and in the case of a judge of the Supreme Court not beyond the age of sixty eight. They also say that experience has shown that most High Court Judges are well past the peak of their usefulness by the time they attain the age of sixty and an automatic extension of the age limit would not be in the public interest. Therefore they suggested that the President may extend the service of a High Court Judge for a maximum period of there years. That was their proposal. Now, Sir, the view seems to be that there should be no extension. My honourable Friend Mr. Munshi, who is also a member of the Drafting Committee, has said that towards the last years or two of their career most of the Judges are not able to work efficiently. Now sir, this article is again connected with another article, i.e., article 200. The original idea of the Drafting Committee was that the Legislature should extend this period; the Home Ministry stated that is must be left to the President in individual cases and now there is a provision in article 200 which says “Notwithstanding anything contained in this Chapter, the Chief Justice of a High Court may at any time, subject to the provisions of this article, request any person who had held the office of a judge of that court to sit and act as a judge of the court etc. etc.” When a High Court Judge is to be made to retire at the age of sixty, I cannot understand the propriety of the Chief Justice of a High Court requesting a retired judge to come and fulfill the functions of a High Court Judge; and further if he comes, he can go on working as a High Court Judge with all the privileges, etc for an indefinite period. It really means that while we are laying down in article 193 that he must retire at the age of sixty without any question of extensions of an individuals career either by the President or by the Legislature, we are also laying down that the chief Justice may call upon any person the view of the Home Ministry is that this right should be exercised by the President in individual cases. This is to my mind rather anomalous. Probably we have been landed in this difficulty by our hostility to the appointment of additional temporary judges, to which reference was made by my honourable Friend, Mr. K.M. Munshi. No doubt there have been cases in which people who have been appointed as temporary judges might have taken advantage of the fact that they happened to sit on the bench, but there are equally good instances of eminent people who have only worked as temporary Judges but who have subsequently taken no advantage of the fact that they happened to sit on the bench, but of pecuniary and financial loss. I know of some persons who have worked as temporary judges and in their case, it cannot be said by any person whatsoever that they took advantage of their positions. All the same the present trend appears to be that there is a disinclination to the appointment of temporary judges for reasons which may be justifiable, but that has necessitated that fact that some arrangement must be made for clearing of arrears of work. Because judicial work might increase in any High Court and for various reasons we are against the appointment of temporary or additional judges, we have found it necessary to incorporate article 200. It seems to be intended that in such a case some retired judge may be called upon by the Chief Justice to attend to the arrears of old work or the disposal of new work. So far as the age limit of judges is concerned, while we are going to accept the recommendation of the House Ministry that the President as the appointing authority should be authorized to extend the period of the High Court Judge, while we are also not giving power to Legislature for such extension, we regoing to enable the Chief Justice to call upon any retired judge to come and work as a judge; it may be for two or three years. The result has been that while we provide in one article that he shall retire at the age of sixty, there in another article (200) by which any Chief Justice can call upon a retired judge to come and do the work of a High Court Judge. Thereby we are practically going to leave this question of extension of the work of a High Court Judge in the hands of the Chief Justice and as we know the Chief Justice may appoint a particular judge because he has been working for so many years and there may be so many reasons for which people will go on getting extension under this article 200. Therefore, I think that the whole question of the period of sixty years has been more confused than what it was before we took it up and it has undergone so many changes. The drafting Committee at one time thought that in individual cases there should be provision for extension of this period beyond sixty and they wanted it to be left to the Legislature. The Home Ministry had stated that it should be left to the President to decide in individual cases and in the final disposal of the matter it appears that we are all determined that he must retire at the age of sixty. But by a kind of certain other reasoning and because we do not want any temporary or additional judges, we are not again providing for this extension. Practically it will be easy for the High Court Judge to induce his Chief to say that there are a lot of arrears of work to be done and that he should be continued and there is no period even fixed for such extension. This is an anomaly which should be carefully attended to.
