A wish list for reform in India’s higher judiciary

There are more important aspects relating to the retirement age of judges on which change in the system rests

Published - June 22, 2022 12:16 am IST

‘It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments’

‘It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments’ | Photo Credit: Getty Images/iStockphoto

Of late, there is a rumour doing the rounds between Raisina Hill and Tilak Marg. Twittering birds have it that the age of retirement of Supreme Court of India judges is to be increased to 67 years, not immediately but come a couple of months. This will fall during the tenure of Justice U.U. Lalit who by seniority is expected to take over as the Chief Justice of India (CJI) on August 27, 2022. Dehors the increase, Justice Lalit would have had two months in the august office; come the amendment, his tenure goes on to November 2024. This alteration in age would affect every successor notably Justice D.Y. Chandrachud who will see delay in his ascension from November 2022 to November 2024. All in all, quite momentous for court watchers. Also momentous for political watchers since the next Lok Sabha election is due by May 2024. Much therefore hangs on age, especially the looks of the Court.

Fallout is competition

However, there are more important aspects relating to the retirement age of judges on which reform may be hung, and some of these go far deeper than a mere biennial increase. For one, it is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges; High Court judges now retire at 62 and Supreme Court judges at 65.

There is no good reason for this difference. It is not as though grey cells of High Court judges decline dramatically after 62 or those of Supreme Court judges shine glowingly for three years thereafter. Judges, like other men and women of law, are professionals who have long working spans and are capable of good useful work well into their 60s. Age does not wither them easily. The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years. If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court. There is good work to be done in the High Courts, and we need good men there.

Needed, a culture of service

But let us not stop there, and instead move to consider what happens to Supreme Court judges after their tenure in the Supreme Court. Several focus on arbitrations and amass considerable fortunes with high fees and multiple sittings. Indeed, some say that they make more money in one year of arbitration than in their entire judicial careers. A minority of judges devote themselves to public service; sadly, this is a very small minority. Another lot are appointed to various constitutional posts and tribunals and commissions. It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments. Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life. Obviously they should be barred from arbitrations; it should further be provided that if any judge is unwilling to be a part of the cadre and instead wishes to pursue arbitrations post retirement, then senior positions on the Supreme Court such as the membership of the collegium ought not to be available for them. We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.

Serve equally

It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India, but we may pause to consider whether this is what the law mandates, and whether it is wholly wise. As to the first, the Constitution mandates no such thing. Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years. The requirement about appointing the seniormost judge to be the CJI is a sleight of hand devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an obvious and naked usurpation of the President’s power and a blatant attempt to rewrite the Constitution. It has no constitutional legitimacy. As to wisdom, public purpose is better served by ensuring that the judges of the Supreme Court during their entire tenure are not swayed by their expectations or aspirations to the higher office of CJI, and do not on that account calibrate their views or pause before judgement. Human frailties are human frailties, and judges are no exception much as they may consider themselves to be. There are sufficient examples in India’s judicial history of aberrational judicial conduct with the Holy Grail in view, as also refusing to hear contentious cases which may provoke the executive red or orange light. Indeed, there is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation. Let all serve equally under the constitutional throne for the entire length of their tenure.

Choosing a leader

Who then shall be primus inter pares, the first among equals? For the court needs a leader. Go back to the Constitution again; among its catchpool for judges of the Supreme Court are judges of the High Court, senior advocates and distinguished jurists. For argument’s sake let us take the first. Since we want to keep serving sitting Supreme Court judges inviolate from all but the purest influences, let us say that when a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader. Do not forget that M.C. Chagla and P.V. Rajamannar, two of our most eminent judges, retired as Chief Justices of the Bombay High Court and the Madras High Court, respectively. The appointee should have a clear three year term — not the truncated weeks and months that some CJIs now get. But he should not function as the primus super pares as many CJIs nowadays do — calling the shots and having their unfettered way. He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance. Such a combination of CJI so chosen working with senior ranking colleagues will make collegiate functionality both a natural course and an imperative necessity.

Lest that anyone should think that this is an idea coming from outer space, this is invariably followed in making the appointment of the Chief Justice of the United States Supreme Court. Only five of its 17 Chief Justices served earlier as an Associate Justice, the rest came fresh to the Court. It is part of a system designed to relieve excessive power and pressure.

Sriram Panchu is Senior Advocate, Madras High Court. E-mail: srirampanchu@gmail.com

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