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Updated: September 1, 2012 01:15 IST

The age of judicial reform

T. R. Andhyarujina
Comment (29)   ·   print   ·   T  T  
The Hindu

In keeping with global practices, Supreme Court judges should retire at 70

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 seniormost 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.)

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Without causing aspersions on the intent of the author, being from the
legal profession himself, the arguments at best can be political in
nature. A viewpoint has been given and it is up to the society at large
to debate on this and come with the best possible solution. Social
scientists can pitch in with a structured scientific study.

from:  Raja
Posted on: Sep 2, 2012 at 21:30 IST

It is not understood why the Courts take lenient view with respect to
the delay in filing cases in Government Departments. Courts grant
condonation to the delayed filing of cases pertaining to the Government
especially Railways. If the Government is unable to file an appeal with
in the stipulated time limit, it shows that Government's inability only.
Will Law Minister come forward to look into such attitude of the
Government departments in filing appeal against individuals or more
particularly the Staff.

from:  S.Kalyanasundaram
Posted on: Sep 2, 2012 at 21:14 IST

Judges, justice delivery, as any other profession and that too one of
the pillars of the society, must be professionalized as much as
possible. In this regard, both the appointment of judges and their
tenure needs larger debate and ensure that this system is and can
fulfil the aspirations of the current demographics, current milieu in
which Indian State exists.
Now on the retirement age, if the other profession can do good with
"matured" professionals at 60, I dont see the same norm can be applied
to Judicial appointments as well. If one is indeed brilliant,
sagacious, pragmatic and dispassionate, which are mostly pronounced
obvious criteria for a judge, then all such elements would have come
to fore over illustrious service of about 20-25years; not necessarily
suddenly in the twilight years of the natural retirement of faculties.

from:  Srinivas
Posted on: Sep 2, 2012 at 20:31 IST

Why not try OUT OF BOX thinking.
Let each Supreme court judge has a tenure of 10 years and Chief justice of India 6 year irrespective the age of appointment and all of them must have worked at least 5 years in any High Court.

from:  Balvinder Singh
Posted on: Sep 2, 2012 at 19:53 IST

Even in the case of Ministers, MPs and MLAs, their tenure should be limited to 10 years or retirement at 70 years age whichever is less. That will make our country more clean and save India from all these corrupt politicians who think that it is their birth right to rule and loot for life time.

from:  MVJRao
Posted on: Sep 2, 2012 at 19:06 IST

Does this mean all young judges are not capable?Instead the
government should allow the persons at earlier age to supreme
court.

from:  Veera Reddy
Posted on: Sep 2, 2012 at 18:52 IST

The political process in India is cumbersome dilatory, erratic and
expense. A rational-legal society is pillarised on justice. However,
Something like justice is not available in the courts. The problems are
well-known. But the will to solve them is not there. Rise in the age of
retirement will not solve the problem.

from:  Jaspal Singh
Posted on: Sep 2, 2012 at 17:44 IST

its good idea but do not we think about all india judicial exam for recruiting of supreme and high court judges? though by increasing age limits of judges there will be more manpower available but there will be increased unemployment and dissatisfaction in young and talented lawyers because of lack of vacancy for them.

from:  Rutvij h hedamba
Posted on: Sep 2, 2012 at 17:20 IST

In my view it will be better to increase the upper limit for the judges
as the current limit for it, which is 60 years seems too early
retirement for judges. They should get proper experience so that the
decisions given by them will be improved. For this, we have to give some
time to them.

from:  vivek patil
Posted on: Sep 2, 2012 at 15:38 IST

What about cognitive decline that comes with ageing? It is a well documented
scientific fact that cognitive abilities (memory, learning, perception, decision making
and even moral behavior) declines with age. Isn't it important to include regular
mental and cognitive fitness assessment for these senior people---somewhat similar
to that in the armed forces?

from:  valmiki
Posted on: Sep 2, 2012 at 14:47 IST

It is a good suggestion , as argued by our constitution makers
appointment of a judge after the age of 65 makes them unfit after that
age . The same can be argued to our parliamentarians . There is no bar
on leadership , similarly for a free and uncorrupt judiciary this move
will be helpful. Moreover a voluntary retirement scheme after the age of
65 till 70 will help remove the "fitness" factor as stated by our
constitution makers.

from:  G.Meena
Posted on: Sep 2, 2012 at 11:42 IST

Enhancing the age of High court judges at 65 or more than is a willfull action so that their tenure experience will help the judiciary to act precisely to the situation.The constution makers had no notion of the future and it was ruthless to guess about their inefficiency at 65...Overseas supreme courts has no any kind of this constutional barriers in the tenure of the supremecourt judges..It's a proactive for future inida to amend the constitutional rules....So that our Judiciary System will be healthy,realstic and reliable.....

from:  satish
Posted on: Sep 1, 2012 at 21:00 IST

I would rather say that we should encourage 'young minds'. We should start appointing judges at the age of 35 and above and 'catch them young'. Retirement age should not be extended as it hampers the growth of younger judges. And, I wonder- "What is it that can't be done at 62 and can be done at 65?"

from:  Rohit
Posted on: Sep 1, 2012 at 20:52 IST

true to his status as a leading senior Advocate of the Supreme Court, the Author has presented his arguments in a very attractive and forcefull manner. I beg to differ from him for following reasons.
In my humble opinion why our country is in bad shape is because in all fields of State activities the leading positions are occupied by people who have outlived their prime and youth. They are terribly out of sync with the the ground realities and unable to come out their old obsolete mindset. Hence the present sordid state of affair.They have in fact blocked the talented generation of young indians who have no illusions about ground realities and who are capable of out of box and innovative thinking required for meeting the present situation. the judiciary is no exception. what is required it to make way for young Indians. give them chance. I am sure even in worst case scenario, the situation will be several time better than what it is today.

from:  H C Moolchandani
Posted on: Sep 1, 2012 at 18:24 IST

Retirement age of judges should not be considered in isolation.
Comparison with other countries just for judges does not seem
appropriate. What about bureaucrats, academics and a host of
others? There is a case for increasing the retirement age because
of londevity, but it has to be balanced against opportunities for
younger people. The best way is to increase the retirement ages in
a pre-planned stages. The retirement age of judges can be fixed a
certain number of years higher. Just increasing the retirement age
for judges alone and justifying it by comparing with foreign
countries when so many basic aspects in our country are very
different, is not the right approach.

from:  T. N. Rengarajan
Posted on: Sep 1, 2012 at 18:23 IST

I think mental health and mental agility should also be a criterion. It
is a well known fact that mental functioning and efficiency declines
with age. We should needlessly not copy what other countries do.The
author suggested a simple step in reforming judicial system in the
country besides others.it is not just increasing the age of retirement
of higher judges but also recruiting young talented law graduates with
necessary training into the service would serve the purpose much better.

from:  Baljit Singh Brar
Posted on: Sep 1, 2012 at 16:06 IST

When our foreign minister and Prime Minister can hold the esteem
portfolio at the age of 80, then why can't the judges of Supreme Court
and high court?

from:  Gaurav Singhal
Posted on: Sep 1, 2012 at 15:49 IST

Though there should be an age of retirement, those Judges should get an
extension who has prolific record in the past and on the other hand who
did not have a convincing career as Judge, they should retire thus
making way for new Judges.

from:  Himanzshu K Deka
Posted on: Sep 1, 2012 at 15:39 IST

in the united states there is no upper age limit for retirement for the judges. We have a paucity of judges in all the courts not only because of the infrastructure but also due to the lack of suitable candidates and qualified lawyers willing to fill up such vacancies.The process of appointment is itself dilatory due to the delays of the system.The longevity of the population has increased over the past decades the world over. So too in India. The education levels have been going up. With the raising in age the experience also increases along with knowledge. In my opinion the upper ceiling on age limit should be removed. It will be a win-win situation for India.

from:  s. narayan
Posted on: Sep 1, 2012 at 14:05 IST

This article makes me connect to the famous issue of the retirement of
our cricket genius Mr.Tendulkar. Isn't it most of the times an Indian
mentality to stretch the limits, until there is no other option left
except to retire? Comparing the same with the other foreign nationals
like the Australian maestros, namely the Gilchrist, the Mcgrath etc, it
more or less makes the picture clear. Hence, I am totally against
having no retirement age in India for the judges (and also other fields
like sports) as also, having an extended retirement age, comparing it
with other countries. If the issue is of tenure and maturity, the same
can be achieved by improvising the system of selection of the judges
and letting even young, talented and qualified lawyers to take up
positions of responsibility. If the UPSC civil services, are capable of
appointing young students to posts like the commissioner, CEO, Second
secretary etc, I see no reason why a similar system can be adopted at
the judiciary platform

from:  Rohan Deshmukh
Posted on: Sep 1, 2012 at 13:48 IST

I'm against raising the retirement age. As you've already pointed out,
not just judges but most people become incompetant after the age of 60.
Secondly, you said that SC judges do not get the opportunity to excel
but, aren't they supposed to excel even before they become the judge?
Third, if you compare the retirement ages with other countries, it is
wrong as the people outside have higher life expectancy and better
healthcare facilities. And if the retirement age is increased, why not
increase the same for other professions like doctors?

from:  Rohan Gupta
Posted on: Sep 1, 2012 at 13:45 IST

It is funny that now it is suggested to raise the retirement age of High Court and Supreme Court Judges on the ground that with a larger tenure, judges may acquire more maturity. It is ridiculous. Their maturity will never come even if the retirement age is made to 100 years. It is mentioned in the article that there is no regirement age in the USA, yet some the judtes retired quite early. If it is made in Inda, our judges would not retire. They would stick to the chair till their last breathe. The standard of judiciary will never improve. It was hoped that with the implementatin of Sethi Commission recommendatins, justice delivery would improve significantly. In India nothing will happen. Even after 100 years they would seek after retirement appointments in different commissions. So future is dark.

from:  Sunirmal
Posted on: Sep 1, 2012 at 12:27 IST

The author suggested a simple step in reforming judicial system in the country besides others.it is not just increasing the age of retirement of higher judges but also recruiting young talented law graduates with necessary training into the service would serve the purpose much better.

from:  aneel.sb
Posted on: Sep 1, 2012 at 12:02 IST

Rather then making age an issue, Government should consider ALL INDIA
JUDICIAL SERVICES on the line of other service through well defined
progression path from district court to supreme court it not only make
them mature with time but also they not envy about there short tenure.

It also take tap on favoritism, nepotism and other corrupt practices,
because extension of 2-5 year cannot justified for any service.

from:  Manish Yadav
Posted on: Sep 1, 2012 at 11:46 IST

I think mental health and mental agility should also be a criterion. It
is a well known fact that mental functioning and efficiency declines
with age. We should needlessly not copy what other countries do.

from:  Peter
Posted on: Sep 1, 2012 at 11:15 IST

Retirement from any profession is decided on the basis of the working
credential and working ability of the person for that post.As in case of
our judiciary supremos there working credibility and and ability of
judgement will only flourish with more working year in the office which
in turn is helpful for our judicial system and for us too.The proposed
age of working under proposed 114th amendment is good as mentioned in
the above statement and also in coherence with the world panorama of
judicial system.

from:  Mayank Kanga
Posted on: Sep 1, 2012 at 11:12 IST

All U.S. Federal Judges (not only U.S. Supreme Court Judges) have life
time appointments. Thus the courts have experienced judges. Framer of
constitution wanted this way to maintain checks and balances between
the branches of government and to insulate judges from pressure of
popular public opinion. I think India should have life time
appointments for Supreme Court Judges with maximum limit of 20 years
service and with impeachment power to the parliament.
Current system of appointment of judges of Supreme and High Courts in
India is the best in the world -- it has worked for 150 years without
a problem. It guarantees that we do not have political activists or
soldier of fortune in the court.

from:  Maya Ghose
Posted on: Sep 1, 2012 at 11:03 IST

This is a good move to increase age of High court judges from 62 to 65 years. Reasons sighted in this favour are very elaborative. I dont think the logic given by T.T. Krishnamachary and K.M. Munshi that the judges become unfit and incompetent after 60 years of age. Had this been this case then our chairmans of National Humar Rights Commission (enacted by HR Act 1993) for whom retiring age is 70 years are incompetent and unfit for the job. This is certainly not the case as they are well adept at their work. We should be keeping the reforms as per global standard and practices.

from:  Saquib Khan
Posted on: Sep 1, 2012 at 08:49 IST

"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..." is a myth.This wishful thinking has
no scientific basis. On the other hand persons occupying high
constitutional posts are expected to raise above the commonplace
ambitions that the learned author cited as interfering with the
honest working of the judges especially on the eve of retirement.It
is no uncommon spectacle that we find retirees hanging around
centers of political power for post - retiral sinecure jobs. It is
all in the mind and strength of character.The words of Justice
Jackson, not reproduced verbatim though, are worth remembering :
Judges are often bribed not by money but their ambition. The cure
lies only in Soul-searching.Alongside let us also start some
original thinking to find proper solutions to our problems which are
peculiar to our polity instead of relying upon second hand knowledge
applied elsewhere.

from:  Satyanand Kattamuri
Posted on: Sep 1, 2012 at 05:19 IST
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