The age of judicial reform
by T. R. ANDHYARUJINA | The Hindu | September 1, 2012
On August 18, 2012, Prime Minister Manmohan Singh, speaking at the 150th year celebrations of the Bombay High Court, said the government was in favour of raising the age of retirement of High Court judges. Presently, Supreme Court judges retire at 65 and High Court judges at 62. The Prime Minister was referring to the Constitution (114th Amendment) Bill 2010 to raise the retirement age of only the High Court judges from 62 to 65, which was tabled in Parliament in December 2011 but not as yet passed. Today, there are many aspects of the working of the superior judiciary which require far-reaching changes.
Quality of judges :
The foremost reform would be to secure the quality of judges. From all accounts, the present method of selection and appointment to the Supreme Court and High Courts by the judges themselves does not ensure their getting the ablest and most competent judges. But a change in the method is a far-reaching constitutional exercise and will take considerable time to come about. In the meantime, one essential change — raising the retiring age of the judges of the Supreme Court and the High Court — may help in raising the standards of the judiciary and can easily be made.
Enhancing the retirement age of the High Court judges to 65 will have many advantages. One factor deterring a competent lawyer from accepting judgeship is the retiring age at 62. Increasing it to to 65 may induce competent lawyers to seek appointment as judges of the High Court. Secondly, with a larger tenure, judges may acquire more maturity, learning and experience so necessary for a judge. Thirdly, with retirement at 65, a judge may be less anxious about looking for employment after retirement, by way of an appointment to a Tribunal or Commission by governments. Fourthly, today the Chief Justices and most senior judges of the High Courts, nearing their retirement at 62, sometimes aspire unbecomingly to being selected judges of the Supreme Court not only for the prestige of the post but also to obtain another three-year stint in the Supreme Court. If the retirement age is increased to 65 on a par with that of Supreme Court judges, senior judges may be content with remaining in their own High Court rather than seek an additional three-year stint, in the Supreme Court. The history of enacting laws on the retirement age of High Court judges makes strange reading. The Constitution makers fixed it at 60 following the Government of India Act, 1935. At the time of making the Constitution, it was suggested that the age be increased but eminent parliamentarians like T.T. Krishnamachary and K.M. Munshi strongly resisted this. They said most High Court judges became unfit for active work after 60. They believed that only rarely judges beyond 60 remained competent and these few judges would have the opportunity to be appointed to the Supreme Court or as ad hoc judges in the High Court under another provision of the Constitution. With no logic, the Constitution-makers had a poor notion of the fitness of High Court judges after 60, but a higher notion of the competence of Supreme Court judges after 60, for whom they prescribed retirement at 65. In 1962, the Constitution was amended to raise the retirement age of High Court judges only, to 62.
Besides raising it to 65, it is also imperative to increase the age of retirement of Supreme Court judges from 65. Under the present dispensation, judges are appointed to the Supreme Court from the ranks of Chief Justices of the High Courts or from the senior most High Court judges at an advanced age prior to their retirement in the High Court.
Short tenure :
In consequence, a Supreme Court judge generally has a tenure of four to six years and sometimes just three years before he retires at 65. The present workload of Supreme Court judges does not give them an opportunity to excel like their counterparts in other leading Supreme Courts of the world, and moreover, with a short tenure even the ablest judge has not the time to master the law and acquire the maturity required of a Supreme Court judge.
In leading Supreme Courts abroad, the retirement age is above 65. In the High Court of Australia (which is the apex court there) it is 70, in the Supreme Court of Canada 75, in the Supreme Court of Ireland 70, in the Supreme Court of Israel 70, in the Supreme Court of New Zealand 68, in the Constitutional Court of South Africa 70 or after 12 years of service, and in the U.K. Supreme Court 75.
No retirement in U.S. :
Uniquely, there is no retirement age for judges of the Supreme Court of the United States of America and they can serve until death, though judges retire at an age of their choice. Justice Souter retired at 69, Justice Blackmum at 85 and Justice Thurgood Marshall at 82. Chief Justice Rehnquist of the U.S. Supreme Court died in 2005 when he was 80, after serving it for 33 years. On average, the retirement age is found to be 78 in the U.S. Supreme Court. But most Supreme Courts have the age of retirement as 70. It is only in India and Pakistan that Supreme Court judges have to retire at 65.
It is appropriate that the retirement age of Supreme Court judges be also raised above 65. The Venkatachalliah Committee to review the working of the Constitution suggested increasing it to 68. In the opinion of this writer, the retirement age of Supreme Court judges should be 70. This will give them a tenure longer than the present four-six years. A retirement age of 70 years may also avoid judges seeking post-retirement positions from the government. Such an increase may mean some judges who are not up to the mark continuing till the age of 70 in the Supreme Court but this cannot be helped.
Consensus :
Quality of judges :
The foremost reform would be to secure the quality of judges. From all accounts, the present method of selection and appointment to the Supreme Court and High Courts by the judges themselves does not ensure their getting the ablest and most competent judges. But a change in the method is a far-reaching constitutional exercise and will take considerable time to come about. In the meantime, one essential change — raising the retiring age of the judges of the Supreme Court and the High Court — may help in raising the standards of the judiciary and can easily be made.
Enhancing the retirement age of the High Court judges to 65 will have many advantages. One factor deterring a competent lawyer from accepting judgeship is the retiring age at 62. Increasing it to to 65 may induce competent lawyers to seek appointment as judges of the High Court. Secondly, with a larger tenure, judges may acquire more maturity, learning and experience so necessary for a judge. Thirdly, with retirement at 65, a judge may be less anxious about looking for employment after retirement, by way of an appointment to a Tribunal or Commission by governments. Fourthly, today the Chief Justices and most senior judges of the High Courts, nearing their retirement at 62, sometimes aspire unbecomingly to being selected judges of the Supreme Court not only for the prestige of the post but also to obtain another three-year stint in the Supreme Court. If the retirement age is increased to 65 on a par with that of Supreme Court judges, senior judges may be content with remaining in their own High Court rather than seek an additional three-year stint, in the Supreme Court. The history of enacting laws on the retirement age of High Court judges makes strange reading. The Constitution makers fixed it at 60 following the Government of India Act, 1935. At the time of making the Constitution, it was suggested that the age be increased but eminent parliamentarians like T.T. Krishnamachary and K.M. Munshi strongly resisted this. They said most High Court judges became unfit for active work after 60. They believed that only rarely judges beyond 60 remained competent and these few judges would have the opportunity to be appointed to the Supreme Court or as ad hoc judges in the High Court under another provision of the Constitution. With no logic, the Constitution-makers had a poor notion of the fitness of High Court judges after 60, but a higher notion of the competence of Supreme Court judges after 60, for whom they prescribed retirement at 65. In 1962, the Constitution was amended to raise the retirement age of High Court judges only, to 62.
Besides raising it to 65, it is also imperative to increase the age of retirement of Supreme Court judges from 65. Under the present dispensation, judges are appointed to the Supreme Court from the ranks of Chief Justices of the High Courts or from the senior most High Court judges at an advanced age prior to their retirement in the High Court.
Short tenure :
In consequence, a Supreme Court judge generally has a tenure of four to six years and sometimes just three years before he retires at 65. The present workload of Supreme Court judges does not give them an opportunity to excel like their counterparts in other leading Supreme Courts of the world, and moreover, with a short tenure even the ablest judge has not the time to master the law and acquire the maturity required of a Supreme Court judge.
In leading Supreme Courts abroad, the retirement age is above 65. In the High Court of Australia (which is the apex court there) it is 70, in the Supreme Court of Canada 75, in the Supreme Court of Ireland 70, in the Supreme Court of Israel 70, in the Supreme Court of New Zealand 68, in the Constitutional Court of South Africa 70 or after 12 years of service, and in the U.K. Supreme Court 75.
No retirement in U.S. :
Uniquely, there is no retirement age for judges of the Supreme Court of the United States of America and they can serve until death, though judges retire at an age of their choice. Justice Souter retired at 69, Justice Blackmum at 85 and Justice Thurgood Marshall at 82. Chief Justice Rehnquist of the U.S. Supreme Court died in 2005 when he was 80, after serving it for 33 years. On average, the retirement age is found to be 78 in the U.S. Supreme Court. But most Supreme Courts have the age of retirement as 70. It is only in India and Pakistan that Supreme Court judges have to retire at 65.
It is appropriate that the retirement age of Supreme Court judges be also raised above 65. The Venkatachalliah Committee to review the working of the Constitution suggested increasing it to 68. In the opinion of this writer, the retirement age of Supreme Court judges should be 70. This will give them a tenure longer than the present four-six years. A retirement age of 70 years may also avoid judges seeking post-retirement positions from the government. Such an increase may mean some judges who are not up to the mark continuing till the age of 70 in the Supreme Court but this cannot be helped.
Consensus :
It is therefore imperative that lawyers, judges and jurists bring about consensus on this minimum change required until other far-reaching changes in the judicial system are made.
(The writer is a Senior Advocate of the Supreme Court and former Solicitor-General of India.)
(The writer is a Senior Advocate of the Supreme Court and former Solicitor-General of India.)