Several articles and write-ups have periodically appeared in the print media on the subject of retirement age, emphasizing the need to enhance it for Judges of the High Courts and the Supreme Court of India. In 2010, the 114th Amendment to Constitution proposed to enhance the age of retirement of High Court Judges on par with the Supreme Court, i.e., 62 years to 65. Political developments stifled the passage of the change.
Earlier, in 2000, Justice M N Venkatachaliah Commission on Constitutional reforms recommended the enhancement of the age of retirement to 65 and 68 for the High Court and the Supreme Court Judges, respectively. While Judges in the Supreme Court of the United States (SCOTUS) serve for life, the average age in other countries, including the UK, is 70 years.
In April 2022, Justice N V Ramana, Chief Justice of India—slated to retire on August 26, 2022—said it is a pity that in India we do not exploit the experienced talent pool. He was in a Webinar along with SCOTUS Judge Stephen Breyer, who recently retired at 83. A senior Judge with considerable experience on the bench acquires the felicity to dispose of matters far quicker.
How old is too old?
Judges have always been placed on a higher pedestal, uniformly all over the world. The underlying concept of prescription of higher age for the Judges is to shepherd the institution, which is the custodian of public conscience of civil society, sagely and wisely. Knowledge and insight come with experience, and experience comes with judicious ageing. To say the obvious, judicious use of experience yields better results. After all, a judge cannot retire from his or her experience. A British author has aphoristically observed, “Judges don’t age; time decorates them!”.
The Constitutional Courts must deliver judgements having exalted precedential value, exemplifying judicial panache and acumen. The quality of judging variegated causes and disputes of myriad kinds will be relatively finer when further experience is at play.
A judge has an evolving persona—moulded with the passage of scholarly time spent on the judicial pulpit. The system has to make judges out of common persons, who inevitably suffer from the same foibles as their fellow citizens.
Metamorphosis towards achieving a wholesome judicial temperament and equanimity is likely to ripen into fruition in their autumn years. Compulsorily retiring such well-trained judges in the prime of their performance does not do justice to the system. Their contribution to the institution, when better posited, is regretfully aborted.
No retirement from professional life
In reality, these Judges, barring a few, continue to be active as members of various Tribunals, Boards, Commissions, etc., where the retirement age is much higher. Even after the post-retirement sinecures, the Judges continue to be professionally engaged in private arbitrations using their experience on the bench. Such expertise is lost to the institution. Some octogenarian Judges remain active in the arbitration circuit. The scholarship and erudition gained in their former avatars are appropriated for personal and private causes. It is disquieting that the institutions meant to serve seminal public interests are deprived of their seasoned services when it matters longer.
What is the way forward?
There are more than 58 lakh cases pending before High Courts and 69,000 cases before the apex court. Clamour for more Judges is not the solution as a panacea for the pendency pandemic.
The Judges are increasingly being appointed based on expediencies without incisive scrutiny of their candidature, infusing the system with mediocrity. As numbers increase, the institution is denuded of its collective standing. Justice has become judge-centric, too often allowing judicial vagaries to creep into the system. The absence of cohesive institutional outcomes leading to uncertainty, coupled with notorious delay in disposal of cases, have made judicial remedy a dreadful option for the litigants.
Every High Court has sufficient sanctioned strength to tackle the caseload. Even with the present opaque collegium system in vogue, it can still ensure that persons appointed do not become disappointments. It may suffice to quote the legendary Chief Justice M C Chagla, “Mere increase in the number of judges does not necessarily improve the quality of the work done; nor does it result in a reduction of arrears.”
Article 224 A
“Men and women approaching retirement age should be recycled for public-service work, and their companies should foot the bill. We can no longer afford to scrap-pile people”. These words of wisdom of Maggie Kuhn, an American activist who fought for the rights of older people, would aptly apply to the present crisis-ridden judiciary.
Art. 224-A was the 15th Amendment to the Constitution of 1963 vintage, enabling retired judges to be appointed to High Court (ad hoc) on a contract basis. Despite the availability of this provision, since 1963, the same has been resorted to only on three stray occasions for short periods in the past. There are Judges who, despite their constant engagement in more lucrative private assignments/parleys, are willing to serve the institution even in the capacity of ad hoc Judges with curtailed privileges. Discharge of public duty certainly gives a sense of pride and fulfillment than commercially exploiting their scholarship and experience, serving their self-interests.
Appointing ad hoc Judges in terms of Article 224-A involves a simple procedure, with no need for the sanction of the post. The appointments can be fast-tracked with the recommendation of the Chief Justice of the Court concerned.
The fundamental idea of having additional and ad hoc Judges, as provided in the Constitution, is to address the mounting docket explosion in the Courts. A Bench of the Supreme Court in Lok Prahari (2021), responding to a public interest litigation on the aspect of mounting arrears, has observed that such appointments are essential and mandatory as effective means to reduce pendency. But unfortunately, the Government has not bitten the bullet.
Hope the Government would accord foremost priority to saving the higher judiciary from becoming a moribund justice delivery system to the lasting benefit of ‘We The People’.
Justice V Parthiban (Retd)
Retired Judge, Madras High Court
(parthibanyamuna@gmail.com)