Judges neither command the strings of the purse, nor the blade of the sword, but they do command the unflinching faith of the people, which is the actual source of all legal authority that the State exercises. Through consistently dutiful and competent performance of its constitutionally mandated functions, Indian judiciary has grown in stature, influence and power by leaps and bounds virtually dwarfing the other two constitutional branches of the Indian State that, by and large, remained flooded with those who were more interested in plundering than lawmaking or governance. Consequently, they lost the faith and respect of the people while the judiciary gained it through dispassionate performance of duty.
Law and order being the primary responsibility of the State, the inculcation of a sense of security and justice combined with equal access to grievance redressal machinery sit at the very heart of State functions.
However, sense of real security does not really come from armed guards or army battalions, but from the rock-solid general belief that any wrongdoing would be dealt with justly in accordance with the law enforced without fear or favour by the lawful authorities designated for the purpose.
That the country is governed in accordance with the Constitution has to be ensured by the courts and the judges, which is why the role of the judiciary in maintaining the faith of the people in the process of justice is paramount. The judiciary has to protect the rights of the people against the State and must also ensure that no organ of the State breaches the legal boundaries set for it.
The judiciary acts as an impartial umpire and final decider, which also makes it the last house of hope for the citizens. The erosion of this faith and hope would result in the breakdown of constitutional order, which is why the independence of the judiciary has to be maintained and kept out of the way of all real and perceived harms at all costs.
One of the ways in which the independence of judiciary across the world is ensured is security of tenure together with the removal made deliberately arduous so as to keep judges free of all kinds of fear.
This is primarily the reason why federal judges in the US hold office for life because Article III of the US Constitution provides:
The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Therefore, so long as 'good behaviour' stands, the judgeship of a federal judge cannot be taken away, which means regardless of age nothing short of impeachment could force the judge to relinquish his position against his wishes. Also, the government has been categorically and unambiguously barred from diminishing the emoluments of a judge.
The retirement age for judges in India is different for the High Court judges from that for the Supreme Court justices. While High Court judges retire at the age of 62, the Supreme Court judges can continue till they attain 65 years of age. This means that when a High Court judge is elevated to the Supreme Court, he gets an additional three years to function before he or she retires. There is no readily discernable rationale behind this difference. The Law Commission took note of the way the retirement ages are fixed and also the lack of rationale behind setting different retirement ages for different position. The Law Commission observed (Report No. 232, submitted in August 2005):
The practice being followed in fixing the age of retirement of Chairpersons and Members of various Tribunals functioning in the country reveals that there exists no rationale in fixing different retirement age-limits. A chart indicating the names of the Tribunals, the Acts under which they have been established, eligibility criteria adopted for appointment of their Chairpersons and Members, their tenures and the different ages of their retirement, has been prepared which is at Appendix. It may be seen that there is neither any uniformity in the age of retirement, nor any cogent reasons have been given in the respective Acts justifying the criteria adopted for the purpose.
The Report also noted that while the retirement age for Central and State Government employees was first revised and raised to 58 from 55 and then to 60 years, the retirement age for the judges of High Courts was raised just once from 60 to 62. As for the Supreme Court judges, the retirement age has always been 65 years since the very beginning and has never been revised.
The Report challenged the wisdom of the current retirement age for the posts in different Tribunals to which the retired judge from the higher judiciary are appointed. The Law Commission was of the view that if the incumbent of a position with a Tribunal is to retire within a span of two or three years, by the time the person gets to know the working of the Tribunal and gets in the groove, it would be time for him to bid adieu, in which case he would be prevented from contributing much in advancing and improving the working of the Tribunal.
It has been noted by many experts and Law Commission also agreed with them that the retirement age prescribed for the Tribunals are, by and large, arbitrary. Different Tribunals have different retirement ages from 65 to 70 years. The difference is difficult to explain.
It has also been argued time and again that since the nature of work undertaken by the judges at the level of the High Courts and the Supreme Court is same, there is no reason why the retirement age for the judges should be different. The Law Commission, therefore, proposed that the retirement age for those members of the Tribunals that come from the judicial systems should uniformly be made 70 years.
In deciding the retirement age of the judges it must be kept in mind that they do not perform the duties similar to the duties performed by other officials of the State, where physical fitness is of prime importance and where long years of service has an adverse effect on the health and efficiency. Experience sharpens a legal brain and improves judicial efficiency. The fact was duly noted by India's first Prime Minister, Pandit Jawaharlal Nehru, who, during the time when the retirement age for the judges of the High Courts and the Supreme Court came up for discussion, said:
With regard to judges, and Federal Court judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same time it is a highly responsible work, and in all countries, so far as I know, age-limits for judges are far higher. In fact there are none at all. In America the greatest judge that I believe the Supreme Court produced went on functioning extremely well up to the age of ninety-two, for thirty or forty years running. If you go to the Privy Council of England, I do not know what they are now, but some years back when I went there I saw patriarchs sitting there with long flowing beards; and their age might have been anything up to a hundred years, so far as looks were concerned. Maybe, you may overdo this type of thing. But the point is, we must not look upon this merely as a question of giving jobs to younger people. When you need the best men, obviously age cannot be a criterion. [ Constituent Assembly Debate , Vol. VIII, P 246-247]
It is also notable that the Committee to Review the Working of the Constitution, headed by the former Chief Justice of India M.N. Venkatachaliah, had also recommended that the retirement age for Supreme Court judges be raised to 68 years and for the High Court judges to 65 years.
However, many feel that raising the retirement age would not do as much good as needed because despite the expediency of the proposal it does not sufficiently address the issue of judicial independence, which can be adequately addressed only when the judges' tenure is made 'for life' like it is in the US.
Although it is nobody's case that our judges are a gullible or corruptible lot, it is still felt that making judgeship last for life would decisively preclude the possibility of the government dangling the carrot of post-retirement appointments, and would thus ensure complete judicial independence.
Welcoming the move for raising the retirement age of High Court Judges from 62 to 65 years, Hemant Kumar, advocate-cum-legal journalist, says, "It will put an end to ongoing (mal)practices of certain HC judges who employ all tactics to reach Apex Court at fag end of their career just because it would give them three more years to serve. But at the same time there is also a need to put in an effective review mechanism viz . Judicial Performance Commission (as time and again suggested by noted jurist, Justice VR Krishna Iyer), wherein conduct, efficiency and integrity of serving judges is assessed periodically by a specialized body without any fear, favour or bias. The message should be loud and clear that there is no room for an errant and corrupt judge in our judiciary regardless of constitutional protection of his/her tenure."