Judicial reforms are much in the air. One proposal is about increasing the age of retirement of Supreme Court judges from the present age of 65 years to 68 years. The National Commission to Review the Working of the Constitution (NCRWC) headed by former chief justice M N Venkatachaliah recommended that retirement age be raised to 68 years which has not been accepted so far. It is a fallacy that judges after the age of 65 are past their prime. Barring solitary exceptions, a majority of them are in fine fettle as is evident from their appointment to important statutory tribunals and other judicial bodies. The country should not lose good experienced judges because of the mandatory retirement age. After retirement, a Supreme Court judge cannot plead or act in any court or before any authority owing to the mandate of Article 124(7) of the Constitution. However, can retired Supreme Court judges accept arbitrations though there is no constitutional embargo? One view is that an award given by a Supreme Court judge can be challenged in a district court or in the high court depending on the order of reference to arbitration and a successful challenge to the award would not redound to the credit of the judge, and that would also lower the image of the apex court. On the other hand, parties by their choice of arbitrators can have an excellent arbitral tribunal comprising eminent judges and whose award would be final subject to limited grounds of challenge. This course is far preferable to adjudication of disputes by the district court, then the high court and ultimately by the Supreme Court.
The argument that some retired judges prolong arbitrations resulting in delays and costs is not a valid reason to restrict the fundamental right under Article 19(1)(g) of other judges who conscientiously conclude arbitration proceedings in reasonable time. Besides, if arbitration is not proceeded with reasonable dispatch or is inordinately prolonged, judicial remedies are available. It is gratifying that some retired Supreme Court judges, for example, former chief justices Venkatachaliah and J S Verma and Justice Ruma Pal, by a self-denying ordinance, have declined to act as arbitrators. There should be, however, no constitutional embargo on retired judges acting as arbitrators.
Can a retired Supreme Court judge give a legal opinion to a party which is generally flaunted before courts and judicial authorities? The purpose of an opinion is to render legal assistance to the client and not to influence judicial authorities. Therefore, it must be expressly stated in the opinion that it should not be cited before any court or tribunal or any government department or any adjudicating body. Judges of the Supreme Court and high courts disapprove of annexing to the pleadings opinions of retired judges or citing them in argument and in fact refuse to look at them.
A vexed issue is whether a retired Supreme Court judge should be appointed as the president or the chairman of a tribunal. A competent judge and especially one experienced in the field in which the tribunal exercises its functions would enhance the stature of the tribunal and impart credibility to its orders. One caveat must be entered, however. No judge of the Supreme Court should be appointed to head any tribunal soon after his retirement. Process of appointment takes time and would inevitably have been initiated during the period the appointee was a sitting judge. It is not at all suggested that the prospect of future appointment would induce the judge to pass orders favourable to the government. Nonetheless, in the present climate of trust deficit in all institutions, including judicial institutions, public perception is otherwise. Public perceptions cannot be brushed aside. Therefore, there should be a cooling period, of say one year, before the appointment. This would sustain public confidence. In the ultimate analysis, justice is rooted in confidence and public confidence is the bedrock of judicial independence.
Sorabjee is a former Attorney General of India