65 not out? A case for increasing retirement age of judges

With Justice Abhay S Oka recently demitting office, the age-old debate of whether the age of 65 is the right age for a judge of the Supreme Court of India to retire has reignited, and rightly so.

Those who appeared before Justice Oka and have known him over the years during his stints as a judge of the Bombay High Court, Chief Justice of the Karnataka High Court and as a judge of the Supreme Court, can vouch for his steadfast integrity and independence in decision-making. A ceremonial bench in Court Room No.1 packed with members of the Bar along with current and former judges of the Bombay High Court showed the deep respect and admiration he commanded from his brethren.

Senior Advocate and President of the Supreme Court Bar Association (SCBA) Vikas Singh once again reminded the members of the Bar that the age of 65 is too early for a judge of the Supreme Court to retire. To delve into the debate, we first take a look at constitutional provisions that prescribe the retirement age.

Article 124(2) with regard to age of retirement of judges of the Supreme Court reads as under:

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years...

Article 217(1) with regard to age of retirement of judges of the High Court in India reads as under:

217. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of 62 [sixty two years]...

The Fifteenth Constitutional Amendment Act, 1963 increased the age of retirement of High Court judges from 60 to 62. Since then, no amendment has been made to the retirement age of judges of the higher judiciary.

United States of America

The Supreme Court of the United States consists of a Chief Justice and eight other Associate Judges. The Chief Justice and Associate Judges are appointed by the President, subject to the confirmation of the Senate. A majority of the appointments are political in nature, based on the ideology and inclination with the party in power. Associate Judges and the Chief Justice have no age of retirement and continue to hold office till impeachment, resignation or death. There have been instances where judges have served in the Senate or House of Representatives prior to being appointed as judges of the Supreme Court of USA.

William H Taft holds the unique distinction of serving as the 27^th President of the United States (1909-1913) and thereafter as the 10^th Chief Justice of the United States (1921-1930). Such is the unique system of USA that since 1789, USA has only had 17 Chief Justices, with John Marshall serving as Chief Justice for a record 34 years and 152 days. He also served as the Secretary of State (1800-1801) prior to becoming Chief Justice. Contrary to USA, India is currently under the leadership of its 52nd Chief Justice.

United Kingdom

The government of the United Kingdom as recently as in 2021 decided to increase the age of retirement from 70 to 75. This was done after a gap of 27 years, when the government of the day realised that judges work efficiently even post their retirement and that it was important to retain such judges for the value they added to the Supreme Court of the United Kingdom.

Australia

The High Court of Australia is the highest court of appeal in Australia. Section 72 of the Constitution of Australia prescribes the retirement age of High Court judges at 70 years.

The last known attempt by Parliament to increase the retirement age of High Court judges was the 114^th Constitutional Amendment Bill in 2010 drafted by then Law Minister M Veerappa Moily. However, the government had neither pushed for it nor called stakeholders to discuss it, leading to its lapse. In July 2022, then Law Minister Kiren Rijiju told the Rajya Sabha that there was no proposal to increase the retirement age of Supreme Court and High Court judges.

I had the fortune of working with two judges of the Supreme Court of India and they were more than capable to continue in office when they reached retirement age. One of them has authored two books this year on diverse fields of religion and one on the Basic Structure Doctrine. By raising the retirement age of judges of the Supreme Court to 70 years, the government of the day will mitigate a lot of problems.

Firstly, judges would not aspire for post-retirement jobs at the age of 70 like they would at the age of 65. One is reminded of the words of the late Arun Jaitley, a distinguished Senior Advocate and Union Minister, who said in 2012, "Pre-retirement judgements are influenced by post-retirement jobs."

The second positive from this would be that the gap between the retirement age of High Court and Supreme Court Judges would be around 8 years. This would give a judge elevated to the Supreme Court a longer duration to serve. Justice Oka was a judge of the Supreme Court for 3 years and 9 months. The Bar only hoped that he would have a longer tenure. And Justice Oka is not the only case. The Supreme Court has had to let go of many competent judges who were in the prime.

A third positive would bring Chief Justices with longer tenures. I will concede that not every Chief Justice with a long tenure has done great service to our nation, but this would bring a sense of continuity and responsibility to implement long-term plans and goals for the development of the institution and the nation as a whole.

Fourthly with the heavy backlog of cases, judges will have a longer tenure to hear matters and will not have to allot them to different benches to be re-heard due to paucity of time in their limited tenures.

A fifth point would be a longer duration for the Collegium. With this, appointments can be made to the High Courts and the Supreme Court with greater debate and dialogue with all relevant stakeholders. This is likely to put more pressure on the government to clear appointments at the earliest. This would in turn drastically reduce vacancies in courts across the country.

It is needless to say that the current Supreme Court has some exceptional judges who uphold the freedoms of citizens. It would be a pity if one would have to demit office at the age of 65 with still so much to offer to the institution and our country.

It is important that the government of the day keeps the candle lit before the wax melts and seriously considers this as an important issue with regard to the last bastion of the citizens of India.   

Shayan Bisney is an Advocate at High Court for the State of Telangana.