Cover Story

Should the retirement age of judges be increased?

“Justice delayed, is justice denied” – Gladstone

In its 96th report on ‘Demands for Grants-2018-19’, the Standing Committee on Personnel, Public Grievances and Law & Justice, headed by Bhupender Yadav, in March, 2018, revealed that as on January 1, 2018, in Supreme Court of India 55,495 cases were pending and 34.27 lakh cases were pending before various High Courts across the country. One of the reasons for such pendency of cases was given as shortage of judges.
The Parliamentary panel quoting law ministry data gave the break-up of the vacancy of judges in High Courts as: Allahabad 56; Karnataka 39; Calcutta 39; Punjab & Haryana 39; Telangana & Andhra Pradesh 3 and Bombay 24.

The cacophony of two inter-related problems: (a) shortage of judges; and (b) pendency of cases, has long been heard with no visible solution. There has been rope-pulling between respective governments and the judiciary putting blame games and fixing responsibility of the critical situation on each other and both present reasons and arguments in support of their claims. The two sides i.e. higher judiciary and the government have time and again put forth certain unfeasible cosmetic solutions carrying no long term results.

In February, 2018, the Supreme Court ruled that the Constitution does not bar the President from appointing retired judicial officers as High Court judges on the recommendation of the collegium. The Bench consisting Justices A.K. Sikri and Ashok Bhushan said, “In the case of judicial officers of the subordinate judiciary who are recommended for appointment to High Courts, the process of appointment consumes so much time that it adversely affects their tenure. Most judicial officers get a chance for elevation to High Court, only when a few years of service are left.”

These observations of apex court came in a petition filed by one Sunil Samdaira, who had challenged the appointment of two retired judicial officers to Rajasthan High Court, on two grounds: One, only serving judicial officers could be appointed as High Court judges as per the Constitution. As such, the two, who had retired as judicial officers, could not be said to be holding judicial office at the time of appointment as High Court judges. Two, no additional judge could be appointed to the High Court with a tenure exceeding two years as envisaged under Article 224 of the Constitution.

However, the contentions of the petitioner were countered by Additional Solicitor General, Maninder Singh, who argued that under Article 217 (2), a person is eligible to be appointment as an additional judge of the High Court if he has rendered 10 years of service as a judicial officer. The Constitution nowhere says that the candidate must be a serving judicial officer. With regard to petitioner’s second contention, ASG argued that the Constitution fixed the retirement age of an High Court judge at 62 years, so if a judicial officer was appointed as High Court judge after retirement, he would hold office only till attaining the 62 years of age, which would invariably be less than two years.

Accepting ASJ’s argument, the Bench said, “ Use of the word ‘held’ in Article 217 (2) does not indicate that the qualification also meant that apart from holding a judicial office for 10 years, the person should also be holding the judicial office at the time of his appointment as a judge of the High Court.”

Further, in March, 2018, the Parliamentary Panel urged the government to increase the retirement age of Supreme Court and High Court judges to tide over their shortage in higher judiciary. “It feels that it would help in retaining the existing judges, which in turn would help in reducing both vacancy and pendency of cases in the short run,” the Panel said. The Panel recommended that the age of Supreme Court judge be raised to 67 years from the present 65 and that of High Court judge to 65 from the existing 62 years.

However, amid the ongoing debate on vacancies in the higher judiciary, on March 09, 2018, in response to a question in Rajya Sabha, Minister of State for Law, P.P Chaudhary had clarified that no proposal for extension of retirement age of High Court judges was under consideration of the government. Earlier in the year 2010, a Bill was brought before UPA government, to increase the retirement age of High Court judges from 62 to 65 years, which had lapsed after the dissolution of the 15th Lok Sabha in 2014.

The Supreme Court of India on April 01, 2016, had refused to entertain PIL seeking a direction to the centre to set up an authority to consider increasing retirement age of the Apex court judges who presently superannuate at the age of 65. A Bench headed by Chief Justice of India T.S. Thakur referring the issue to constitutional provisions said that the retirement age of Supreme Court judges has been settled by the Constitution itself and it cannot be looked into. The Bench, also comprising Justices R. Banumathi and U.U.Lalit observed, “We must appreciate your enthusiasm for us. Tell us, do you like to withdraw this”, which led counsel for the petitioner Vibhor Anand, a law student to withdraw the plea.

Giving his valuable views, highly renowned Senior Advocate, Fali Nariman said, “I am in entire agreement with the views of the Parliamentary Panel which has recommended that the retirement age of the Supreme Court Judges should be raised to 67 years and High Court Judges should be raised to 65 years.  I have repeatedly maintained that the retirement ages must be raised not for the benefit of individual Judges, but in public interest because at the present constitutional ages of retirement the country loses out on the wealth of experience of a sitting judge at age 62 or 65 – if such judge is fit and able to continue.

When asked, does the move not violate Articles 14, 16, learned Senior Advocate Nariman said, “No, I do not agree that there is any violation of Articles 14 or 16 of the Constitution with regard to fixation of retirement ages for “government employees”.  Judges of the superior Courts are not employees of Government and this has been so held authoritatively and finally – so there is no infringement of the Equality Clause.”

“I agree that talented youths are joining judicial service and in my view they are an excellent injection into the judicial system.  But judicial service does not only require talent, it requires experience which takes years to gain and that is why I had recommended to successive Chief Justices of India that even after Judges retire at the existing retirement age (in the High Courts at age 62 and in Supreme Court at age 65) those who are able and willing should be persuaded to accept appointment as ad hoc Judges which our Constitution expressly permits (Article 127).  But this is still not done.”

“When Justice Manoj Kumar Mukherjee, a very able Supreme Court Judge (who had great experience in criminal law cases) and who was number three or four in seniority at the time of his retirement, was to demit office (in November 1998), I had asked him why he would not stick on as an ad hoc Judge, even after age 65.  And he told me the real reason.  And the reason was that amongst Judges whether of the High Courts or of the Supreme Court, the protocol is that a judge howsoever senior who has retired (whether from the High Court or from the Supreme Court) and is reappointed as an ad hoc Judge for one or two years, he or she goes to the bottom of the ladder and does not retain his/her seniority on the Bench.  This is why Article 127 is rarely invoked.  And it has nothing to do with governments: past or present.  Governments are not concerned in which Court a particular Judge sits – whether it is in Court No.4 or 5 or 6; or Court No.15: the concern of the public is for Judges speeding-up cases, either by promoting settlements or deciding them as quickly as is possible.  This “protocol” (so-called) is a judge-made protocol which has to be abolished, whether the Constitutional age of retirement of Judges of High Courts/Supreme Court is raised or is not raised.”

“There are many Judges who retire, who have rich experience but they are able in body, and willing in mind, to work on for a couple of years more.  It is not the recruitment process that is faulted, much–less politically-motivated as you suggest.  The shortage of Judges is because Judges already on the Bench are not given the option to retain their seniority even when they retire and are proposed to be appointed as ad hoc Judges: all Judges who retire do not need to be given that option; it is only those who have shown great efficiency, competence and learning who need to be not just offered but induced to continue as ad hoc Judges whilst retaining their seniority.  Of course under the present “collegium” system (for recommending fresh appointments in the Superior Judiciary) if such Judges are in the first five they need not retain their position as a part of the “collegium” on reaching the Constitutional age of retirement.”

Another renowned Advocate Navin Kumar Jaggi, accompanied with Aayush Saxena said, “As per the 96thParliamentary Standing Committee Report there are certain important aspects that need to be ascertained while judging the viability of this suggestion. On one hand there seems to be presumptuous advantage of clearing the backlog of cases by the matured judiciary with their utmost efficiency and efficacy but on the other hand it will ameliorate the problem of judicial vacancies.
In its 96th report the Committee takes the note of the pendency of cases in Supreme Court and High Court and it is of the view that to reduce pendency of cases, the existing judiciary with their learned experience, maturity and vast knowledge of the respective areas of law is the best option to clear it quickly and efficiently. It is commonly known that judges with long experience are able to dispose of more cases at a quicker rate. If the age of retirement is not increased to the suggested age limit then there is a great chance that a High Court judge who has 10-12 years’ experience will have to get retired at an early age of his professional zenith. It is in fact a matter of National waste of such an experience if a judge is retired when he/she is at the peak performing level.

When we compare the situation at hand with other jurisdictions such as in England or U.S., one can see the most
liberal and pragmatic approach, which could be a plausible solution for a democratic country like India. In England, Judges of the High Court and Court of Appeal held office during good behaviour. The retiring ages of the High Court and Circuit judges are 75 and 72 respectively by virtue of Section 3 of the Judicial Pension Act, 1959. The Act provides for compulsory retirement of all judges of the Supreme Court and the Lords of Appeal at the age of 75. In USA, Supreme Court judges hold office for life. The U.S. Congress has passed a law providing for voluntary retirement at full pay on or after attaining 70 years of age and after the judge has held the Commission for at least 10 years. A rather interesting fact about the American Supreme Court judges is that the youngest was 32 at the time of appointment and the oldest 69.

Commenting on the issue, Oxford and Harvard educated international lawyer, Dr. Surat Singh says, “The recommendation by the Parliamentary Panel to extend the retirement ages of SC and HC Judges is a welcome step. I was always in the favor of revising the retirement age for the Supreme Court and High Court judges because now the life expectancy has risen substantially and the services of our most experienced judges should be taken as long as they are physically and mentally fit for the job. Regarding the argument that other government servants retire at the age of 60, I would say that even the services of our top civil servants should be taken advantage of up to the age of 65.”

“Since the age of Supreme Court and High Court Judges is mentioned in the Constitution itself, an amendment is needed. I agree that earlier the best and the brightest students would not choose law but today situation is different. Today study of law is most sought after and graduates of top law schools are getting better packages than the MBA graduates.”

“I also agree that the shortage of judges is not because of the lack of talented candidates. The primary reason for the shortage of judges is lack of political will and less than a transparent selection process, where barring a few Hon’ble exceptions, nepotism and favoritism become the key drivers of selection. It is unfortunate that in India connectivity is more important than capability even in the appointment of the Judges. We are not sufficiently imbued with the public spirit to put the interests of the public over our own trivial private interests. Our ego is not sufficiently mature and robust to look beyond ourselves and our relatives. The vision of public virtue in public affairs is woefully lacking in India.”

“The ethos of an impartial exercise of public power without fear or favour are yet to gain ground in India. Saving few exceptions, public power is treated as private property. This is the root cause of the wrong and delayed appointments of judges.”

“However, if there is an increase in the age of judges from 62-65 and 65-67 for the Supreme Court and High Court respectively but also there should be a Constitutional bar for any post-retirement assignment of judges. I don’t think appointment of a CJI to a political appointment of Governor does any credit to the dignity of the judiciary. The only post that should be available to the CJI after retirement should be the post of the President of India and nothing less.”

Reacting strangely on reappointment of judges, a young talented Advocate Jamal Usmani questioned, “If the ASG Maninder Singh says that the Constitution does not mention that the candidate for elevation must be a serving judicial officer, it also does not say that a retired judicial officer is applicable.  It is implied that once a government officer is retired he is no more in government service. What question of elevation then arises? There is also shortage of Indian Police Officers and Army Officers; will you then from the ‘principle of equity’ re-employ the retired police and army officers to fill up the vacancies?”

Jamal further said, “Truely speaking such recommendations are being made in an era when there is no dearth of talent among young generation who have anxiously been waiting to prove their acumen and worth once they get an opportunity to step in the profession of judiciary. The golden opportunities for young aspiring judges are unnecessarily being blocked by monopolising the older ones on the pretext of experience. Putting forth the naked truth, Advocate Jamal said that you survey the marks secured by older generation and the young generation in their respective board and higher education examinations, where it shall be revealed that securing 90% and above marks for today’s generation is a child’s play, whereas securing this percentage for older generation was perhaps a dream.”

Refuting the claim of increased life expectancy rate Advocate Jamal said, “Compared to earlier times, today every third man beyond 40 years of age irrespective of his profession or status is suffering from diabetes, blood pressure and coronary artery diseases, etc. How can you expect a judge’s physical and mental fitness in the age of 67 years. The proverbial jargons like ‘old is gold’ have no practical value in this fast world. Jamal also pointed out that in this digital age a minor of 10 years is more electronic savvy than an highly otherwise experienced person of 60 years. In the coming years, all the court room works will be performed digitally; tell me who will perform better there: a young dynamic tech savvy judge or a long standing older one?”

Jamal also pointed out that the different criteria of fixing retirement ages as 60, 62 and 65 is visibly inconsistent with the fundamental rights guaranteed under Articles 13, 14 and 16. As such, all judicial and non judicial officers of the State are similarly situated persons who should be retired in the same age from the concept of equity. He also quoted, “Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstance without any rational basis or relationship in that behalf.” Bondu Ramaswami vs. Bangalore Development Authority(2010) 7SSC 129.

Giving his views, leading Advocate O.P. Saxena said, “Judges should also not opt for retirement jobs. Justices Chelameswar and Kurian Joseph had categorically said that they would not be accepting retirement jobs. Former chief justices of India, S.H. Kapadia, R.M. Lodha and T.S. Thaur have preceded them.”

Quoting Vidhi Centre for Legal Policy study, Saxena said, “As many as 70 of over 100 retired Supreme Court judges have taken up such appointments in different Commissions and Tribunals, etc.”

To ascertain the normal age of senility degeneration, Lawyers Update talked to renowned physician, Dr. Talat Aziz, who said, “The senility and degenerative conditions depend on many factors including the genetic factors. Early onset of degenerative symptoms are seen in persons with family history of similar problems, as well as with conditions like diabetes, coronary artery disease, kidney ailments and similar chronic illnesses. The onset of early degenerative symptoms are also seen in persons with sedentary lifestyle. In normal individuals some degree of degenerative symptoms  affecting over all body functions manifestly start appearing around the age of sixty years.”

“…… relatively little decline in performance occurs until people are about 50 years old.” (Albert & Heaton, 1988)
“……. cognitive abilities generally remain stable throughout adult life until around age 60.” (Plassman, et al;1985)
“…… no or little drop in performance before age 55….” (Ronnlund, et al; 2005)
“…… most abilities tend to peak in early midlife, plateau until the late fifties or sixties, and then show decline, initially at a slow pace, but accelerating as the late seventies are reached.” (Sachaie, 1989)

According to world famous heart specialist, Dr. H.K. Chopra, Chief Cardiologist, Moolchand Hospital, “Vascular  dementia is seen more  commonly around  the  age of 70 especially in those who have associated with hypertension, diabetes , dyslipidemia, CKD, stroke, carotid artery disease and other comorbidities. It is an aging process with compromised state of circulation in the brain especially in the hippocampal region of  the brain. ”
Whatever may be the outcome of debate on fixing the retirement age of judges, the fact remains that each one of us is governed by the law of metamorphosis and despite attaining excellence of experience and expertise of highest level, each one of us has to pass on that heritage of valuable experience to the next generation in the shape of their written accounts. The  accounts of judges are their judgements, observations and citations. Where then is the wastage of their experiences?

“Justice is to give every man his own.” – Aristotle

Leave a Comment