The Supreme Court dismissed a PIL praying that Their Lordships direct raising the retirement age of judges. What an anomaly! Asking a body to decide on an additional benefit to themselves! Fortunately, the court resisted the temptation and directed the petitioner’s attention to the Constitution mandating a retirement age.
The matter, however, does not rest there. As of late, there has been an increasing demand that judges being forced to retire at 65 (62 in the case of the high court) deprives the country of the services of people who are at their prime. Does not the very concept of a judge conjure up a picture of Wisdom? And does Wisdom not belong to the ages? Why then force a judge to retire when at his best? More so when the Constitution was framed at a time when the concept of age was wholly different. Is not today’s 60 yesterday’s 50?
Age has never been a bar to holding office or being employed in many countries. The US makes age discrimination unconstitutional even in private employment. It is the ability and efficiency that counts. If age brings with it failing health and a consequent reduction in efficiency, that is a good reason but not age per se. Of course, in such countries, the judiciary (to the exclusion of other constitutional branches of state) does not appoint itself. In India, the insistence on a judge demitting office at a given age is not only constitutionally permitted but mandated.
Is it time then to amend the Constitution? The Bar often views with regret the retirement of a judge (although in some cases heaves a sigh of relief!). I have invariably regretted the departure of judges but for an exceptional few. One wonders why, when maturity and wisdom so essential to dispensing justice has nicely set in, a judge is asked to leave. Sixty-five is young by any standards today. And yet, it is old enough to have acquired a greater sense of justice through years of experience. Are we not depriving ourselves of judges who through experience and learning are far better equipped when they demit office than when they were elevated?
Those wishing to maintain the status quo have a strong answer. In the absence of an age of retirement, the removal of a judge who has outlived his utility would be well-nigh impossible. The Constitution says impeachment (a long, cumbersome and politically motivated process) is the only answer. Countries which have conferred “self-decision” to a judge have sometimes found that the same reasons of reduced ability accompanying advanced age favouring retirement also results in the lack of wisdom in accepting that it is time to retire. A judge as great and distinguished as Lord Denning who finally demitted office in his late eighties left much of the fraternity relieved rather than saddened. Should a judge not retire at a stage when people ask “why” rather than “why not”?
And equally, judges who have sacrificed the best years of their professional lives to a taxing job with a pittance of reward find that they have some good years left to do things they may have wanted to but were disabled by the rigours of their office; or to participate in the field of academics or in the mechanism of private dispute resolution as arbitrators with an opportunity to at least earn an income commensurate with their abilities and efforts.
And the final argument of the age increase lobby. There is no age restriction for the legislature—parliamentarians can continue till the day they drop (or are dropped!). The President too and the ministers who make up the executive have no age restriction. Lawyers have no age restriction. Why then the judges? The answer is simple —the President, ministers and legislators all hold office for fixed periods until they face the electorate again and are voted back into office. Judges never face a ballot box. Their removal is only through impeachment. As indeed it must be! The nature of their office and the functions they discharge demand security of tenure.
But while the peculiarity of Indian judicial power enables everything concerning judges—their appointment, their succession, their jurisdiction, their self-disciplining, the scope of their reach into the domains of legislature and the executive is decided by the judges themselves, they have no control over their age of retirement. So while the judges/executive duel as to appointment and disciplinary primacy was decided by the judges in their own favour, in this respect the executive through the legislature holds the upper hand. The great equaliser!
And until the executive is given its say in the appointment and disciplinary procedure of judges, why should they provide longevity of service for those in whose appointment they had no role.
Sundaram is a senior advocate in the Supreme Court