The Ministry of Law, Justice and Constituent Assembly Affairs has given final touches to a draft Bill to introduce a Voluntary Retirement Scheme (VRS) for judges. The scheme would enable the judges of the Supreme Court, the Appellate Courts, and the District Courts to opt to retire before their compulsory retirement ages. But, for this to become operative, the proposed amendments to two laws - the Supreme Court Justices’ Remuneration, Service Conditions and Allowances Act 1969 and Appellate and District Court Judges’ Service Conditions and Allowances Act 1991 - will have to be passed by the Legislature-Parliament. Currently, the draft is in transit through the Finance Ministry, the SC, and the Judicial Council for their part of the job. The proposal provides for adding three years’ service period to the judges’ total service periods. Only those who have already become eligible for pension and completed 63 years of age (for SC judges) and 60 years (for other judges) can take part.

There appears to be divided opinion - one in favour and the other against. Patan Appellate Court judge Eak Raj Acharya has termed the idea a good initiative aimed at giving judges interested in early retirement an opportunity. But former chief justice Kedar Nath Upadhyaya and Nepal Bar Association president Bishwo Kanta Mainali have described the idea as ‘unusual’ and having the possibility of tarnishing judicial independence. Upadhyaya has his doubts about the idea because it has been mooted at a time when there are a number of vacancies lying in the courts. Mainali has instead suggested a fresh appointment scheme, saying that the judiciary is different from the bureaucracy, multinational corporations and trade unions.

One has to keep in mind that judges’ terms differ from one democracy to another, including the existence of lifetime incumbency in certain countries. Any debate can go on endlessly on the relative merits and demerits of the different practices. But the central factor to take into account to test whether the idea can be seriously considered at all is whether it will keep judicial independence intact. First of all, the scheme would be voluntary. Secondly, the appointment of the new judges in place of those who may choose to retire would have to be made through the existing constitutional and legal processes. Therefore, if the existing processes are sound, any fear of weakening the judiciary is hard to support. The very logic that VRS has not been applied to the judiciary before, and so, it must be a bad proposition would appear to be a stretch of imagination. At least, it would give a more attractive window of opportunity for those wishing to retire early. On the part of the government, the motive for this is certainly not one of cutting the judges’ number, because, on the one hand, several courts, including the apex court, are overburdened with cases, and because, on the other, a number of vacancies are yet to be filled. There might be one or more than one objective - for instance, to give juniors an opportunity for promotion, to bring in younger persons with a better mix of qualities in these changed times, etc. The idea is not good or bad in itself. It would rather depend on whether there would be better replacements.