Revisiting superannuation in the judiciary

There is a need to increase the age of superannuation in the higher judiciary.

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JUSTICE Dr. D.Y Chandrachud was sworn in as the 50th Chief Justice of India (CJI) in November last year. He is expected to serve the office till November 2024. This would mean that he will have the longest tenure in the last 12 years (after Justice S.H. Kapadia, who served as CJI between 2010 and 2012) at the Supreme Court, considering the average tenure of the Chief Justice of India is 1.5 years.

It is, however, interesting to note that the previous CJI, Justice U.U. Lalit, served the office for about two and a half months. This makes his term the second shortest in the history of the office, after that of Justice Kamal Narain Singh, who served only for 19 days (from November 25, 1991 to December 12, 1991).

What is the status quo?

On average, a Supreme Court judge has a tenure of about five and half years. This is much less than the average tenure of Supreme Court judges in South Africa, the United States and Australia, being 11.5, 16 and 15.9 years respectively.

The American Constitution allows the Judges in its Supreme Court and inferior Courts to hold office during 'good behaviour', which essentially means a life-long tenure. In the United Kingdom, judges ordinarily have a tenure till the age of 70 years, but in certain situations it can be extended till the age of 75 years. The Constitution of India, under Article 124, lays down the retiring age at 65 for judges of the Supreme Court.

This creates a problem of underutilisation of judges. This limit set on the retiring age is of some concern, and there has been a long-called demand for its change. In 2019, the then CJI Justice Ranjan Gogoi, in a letter to the Prime Minister, expressed his concern about the retiring age of judges of the Supreme Court and high courts, and recommended using Articles 128 and 224A of the Constitution for appointment of ad hoc judges and tenured judges in courts to clear the judiciary's colossal backlog.

This raises several questions and concerns, such as:

1. What is the rationale of the age limit when it comes to judges retiring, that is, what makes a judge eligible for retirement at 65 and not at 64 years of age?
2. Why is there a difference in superannuation age between high court and Supreme Court judges?
3. The problems with post-retirement appointments.

Also read: Appointment of Judges and Judicial Reforms: Need of the hour

What was the Constituent Assembly's view?

What is the rationale behind the prescribed retirement ages?

To understand the matter, one might need to look into the Constituent Assembly debates. Naziruddin Ahmad had proposed an amendment to Article 124 (then Article 103 of the Draft Constitution), stating that the retiring age should be increased to 68 years. He further criticised the system of retiring government servant at the age of 55 years, calling it a 'fallacy' deliberately made by the British. He stated, "[the British] never allowed any efficiency to be developed. They allowed something like mechanical efficiency or a kind of clerical ability in their officers. They allowed no initiative, no freedom of action, no freedom of thought; they crippled the men's intellect while in government service."

This proposal was also supported by B. Pocker and Mahoob Ali Baig. Interestingly, a creative proposal was made by Prof. K. T. Shah, who, while giving the example of the United States and the United Kingdom, did not advocate for setting a maximum limit of retirement, but a minimum period of tenure of ten years, that is, a judge has to serve the office for a minimum of 10 years after which they are free to resign. This practice essentially meant no retiring age for judges in the Supreme Court. Rohini Kumar Chaudhuri also concurred with this view.

However, parliamentarians like Jawaharlal Nehru, Dr. P.K. Sen and M. Ananthasayanam Ayyangar supported the age fixed in the Draft Constitution, that is, 65 years. Nehru did admit the futility of the age limit on the 'efficiency' of a judge, but did not give in to the extension demand.

One of the reasons that might have been in their minds, would have been the possibility of continuing a person on the bench who is for some reason unfit or undesirable. There were, however, a few members like J.R. Kapoor and Mohanlal Gautam who suggested a reduction of the limit to 60 years. However, this was not taken into consideration, understandably because most of the members, including Nehru, were about 60 years of age by then, and allowing and admitting the efficiency argument would have meant agreeing to the idea of people becoming ineffective after 60 years of age, which they were reluctant to accept.

What are the views that have been advanced by official commissions, committees and the Bar Council over the years?

The Law Commission of India, in its 229th report, suggested increasing the retirement age of judges at the high courts and the Supreme Court to 65 and 70 years respectively. This was suggested in order to reduce the heavy backlog of cases at high courts and to find a solution to the problem of finding suitable people for the job. Similarly, in 2002, the National Commission to Review The Working of The Constitution, headed by Justice Manepalli Narayana Rao Venkatachaliah, submitted its report which, among other things, suggested increasing the age of retirement from 62 to 65 and 65 to 68 of high court and Supreme Court judges respectively.

Last year, the Bar Council of India circulated a press release after a joint meeting with different State Bar Councils and office bearers of high court bar associations, and concluded that the age of retirement of judges, both at the Supreme Court and high courts, should be increased. It suggested an amendment in the Constitution to increase the age of superannuation from 62 to 65 years and 65 to 67 years for judges at the high courts and the Supreme Court respectively.

The Constitution (114th Amendment) Bill, 2010 was introduced in the Lok Sabha which aimed at increasing the retirement age of high court judges to 65 years. The bill was referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, which endorsed this view and stated that because of the improvement of health standards in the country, increased life expectancy of people, and the need for proper utilisation of experience and wisdom of judges, the age of retirement of the judges should be increased. But the Bill did not move further because of the subsequent dissolution of the Lok Sabha.

What are the problems associated with judges accepting post-retirement appointments?

Justice Ranjan Gogoi's nomination to the Rajya Sabha caused a huge uproar in the legal community. However, he was the second CJI after Justice Ranganath Mishra in 1998 to have accepted such a political office. In his defence, Justice Gogoi stated that those judges of the Supreme Court who, after retiring at the age of 65 years want to work and are fit to work, are left with no option but to take up another job and work. While this may hold true from an individual-centric perspective, for the larger legal community, it raises the question of judicial integrity and independence.

The late politician and attorney Arun Jaitley, during the discussion on Judicial Appointments Commission Bill, 2013 in the Rajya Sabha, raised the issue of judges accepting jobs post-retirement and its negative ramifications on the independence of judiciary. To borrow Jaitley's words, "Pre-retirement judgements are influenced by post-retirement jobs." For some, this has been a cause of concern as this could invite unwanted Executive interference in judicial matters. A suggestion has been made on this issue regarding the implementation of  a 'cooling-off period' post-retirement, that is, after retirement there will be a minimum time set upon judges before which they shall not be involved in any occupation in an official capacity.

Here, by extending the retirement age bracket and by implementing the cooling-off rule, one can be incentivised to perform one's duty hassle-free and without the fear of interference from the other organs of the State. This could also prove to be helpful to resolve the dilemma faced by judges post-retirement.

Also read: Delhi HC Chief Justice D.N.Patel's appointment as TDSAT Chairperson close on the heels of his retirement as judge raises issue of propriety

What is the counter view against revisiting superannuation?

Efficiency

An increase in the retirement age would have a negative impact on the performance of judges. This is primarily due to reduction in physical and mental fitness with age.

However, this argument does not hold true as at the time this provision was envisioned, the average life expectancy in India was about 40 years; probably, this could have been in the minds of the lawmakers at the time of insertion of this limit. But in 2022, the average expectancy is close to 70 years. This manifold improvement in life expectancy is largely due to the improved health facilities and overall development in the nation.

Many retired judges serve as chairpersons in various commissions and are appointed till the age of 70 years. This goes on to show that they are efficient enough to work even after the age of 65 years. Therefore, there is a strong case for extension of retirement of high court and Supreme Court judges.

Nepotism and corruption

In 2010, a Supreme Court bench consisting of Justices Markandey Katju and Gyan Sudha Mishra , while expressing concerns about the state of corruption in the judiciary, borrowing from English playwright and poet William Shakespeare's play Hamlet, said, "Something is rotten in the Allahabad High Court".

There is a continuing concern about the vulnerability of the system to tackle corruption if there is an increment of tenure. Also, the fear of nepotism in appointments gets aggravated. However, such issues can be tackled with an appropriate anti-corruption mechanism along with other measures to ensure transparency and accountability.

Career advancement

One of the reasons against the increase in retirement age is that it will discourage young members of the Bar from accepting elevation. This fear is largely far-fetched, because the change in retirement age would mean a proportional change and that should not make a large difference to the situation as such. At the same time, there is a need to have judges who could be well versed in the field of technology and other emerging arenas of law.

Although this issue can be solved with the help of amici curiae, as has been used time and again. Still, the argument largely remains valid.

Why do high court judges have a different retirement age than Supreme Court judges?

The question of having a differential age of retirement was discussed in the Constituent Assembly. Dr. B.R. Ambedkar defended the differential age system because, according to him, it was essential to have an increased age bracket in the Supreme Court so that the senior most judges from the high courts could be promoted to the Supreme Court and fresh appointments could be made at the high courts. This would only be possible if there are incentives for a judge to be promoted; if the age of superannuation remains the same for both sets of judges, then there will be no incentive to be promoted at the time a new issue of vacancies would arise in the Supreme Court. Hence, it was necessary to have a system of differential superannuation of ages.

The First National Judicial Pay Commission formed under the chairmanship of Justice K.J. Shetty in 1996 recommended increasing the superannuation age of lower court judges from 60 to 62 years. However, the Supreme Court in All India Judges Association versus Union of India (2001) rejected the suggestion on the grounds of having an already established constitutional framework, allowing for appropriate limits, which should not be disturbed. At the same time, the court upheld the differential age system on the basis of the same established constitutional framework. Since then, there has been no change in the position on the matter.

Also read: Who are our judges?

Why is this an important problem to resolve, and what solutions would constitute a middle ground?

Matters related to the appointment and retirement of judges have a substantial impact on the independence of the judiciary. However, it is true that the present limit is certainly inadequate and will not further the aim of the system to fully utilise the invaluable experience of judges at the Supreme Court.

Justice Gogoi in his letter to the Prime Minister suggested the use of ad-hoc judges and additional judges to tackle the backlog in the system; both of these mechanisms are provided under Articles 128 and 224 of the Constitution. But looking at the present trends, there is a formidable fear of questions being raised about the selection in such processes. Issues related to practical and procedural implementation of the scheme are also pertinent. Notwithstanding anything, viable measures can be adopted as and when the need arises.

Nonetheless, the problem associated with retirement of judges is of some concern. Hence, there is a need to extend the age limit for retirement. This limit can be set according to the consensus so formed, but on analysis of several factors, we can say, a limit between 68-70 years for Supreme Court judges and 65 years for high court judges would suffice the purpose sought to be achieved. Since such an action can only be made possible through a Constitutional amendment — legislative will is essential.

Another suggestion is that of fixing terms, that is, fixing the tenures of judges irrespective of their age. This can be done while keeping the age limits intact in cases where the tenure by the virtue of age exceeds the tenure by term. This can ensure that a judge at least gets the minimum requisite years in a position, so that they can comfortably discharge their work independently and perform services effectively.

The Indian judiciary has got a reputation of being one of the most independent and fair systems in the world. This reputation is because of the continuous and tireless efforts of the judges presiding in it. Hence, it should be ensured that independence of the system and welfare of the individuals in it are paramount. This can be done by rectifying the present anomalies in the system; the first step towards it can be extension in the tenure of judges.