Why should judges retire at 65?

Recently, Union Law Minister Kiren Rijiju brought into focus the issue of increasing the retirement age of Supreme Court and High Court judges. The observation revived a long-standing demand of the bar and the bench for enhancement of the retirement age of judges. The remark gained traction in the legal community since it comes in the wake of the CJI’s relentless campaign to address legacy issues of judicial infrastructure and manpower.

In keeping with Articles 124(2) and 217(1), judges of the Supreme Court and High Courts, at present, hold their office until they attain the age of 65 and 62 years, respectively. This was not always the case. The retirement age of High Court judges was fixed at 60 by the Constituent Assembly, which was later increased to 62 by a constitutional amendment in 1963. A second attempt was made in 2010 via the 114th constitutional amendment to bring the retirement age of High Court judges at par with that of Supreme Court judges. However, the bill lapsed with the dissolution of that Lok Sabha. On the other hand, the retirement age of Supreme Court judges has remained unchanged since the commencement of the Constitution of India.

The Constituent Assembly was itself divided over the question of the retirement age of judges. Some were of the view that appointment should be for life, while others advocated for 68 as the upper limit. It was ultimately Jawaharlal Nehru’s proposal of 65 years for Supreme Court judges which found place in the present Constitution. Seven decades have passed since, and the lived experience gained from the practical workings of the Constitution has demonstrated a palpable need to increase the retirement age of the judges of the higher judiciary, especially the judges of the High Courts. As B R Ambedkar also agreed “65 cannot always be regarded as the zero-hour in a man’s intellectual ability”.

With advancements in the medical sciences, the average life expectancy of Indians has increased significantly. At the time of the drafting of the Indian Constitution, the average life expectancy of Indians at birth hovered around 41 years, while at present it is 70 years and above. This also means that the ‘effective’ age of working Indians has increased due to improvements in life expectancy. Consequently, requiring seasoned judges to demit judicial office at a default age makes for a paternalistic and arbitrary State policy, which is in turn based on unproven notions of mental decrepitude among older people. Interestingly, the Law Commission of India in its 58th report recommended that both the Supreme Court and High Court judges retire at 65. Thereafter, in 2002, the Justice Venkatachalaiah Report recommended raising the retirement age of High Court and Supreme Court judges to 65 and 68, respectively.

Increasing the retirement age of judges holds the promise of several purported benefits for the justice system. It will incentivise more seasoned lawyers to join the judiciary later in their careers. This may attract a wider range of applicants, thus affecting the overall diversity in the Indian judiciary positively. Furthermore, at a time when India is facing an acute shortage of judicial officers across all levels of the judiciary, higher retirement age will mean the retention of a ready pool of skilled, efficient and experienced adjudicators with valuable expertise who would otherwise have been compelled to retire merely for attaining a certain age. Retention should be preferred to losing talented individuals who have already served on higher courts.

India may look to more mature jurisdictions for inspiration as it delineates the best way forward for itself. Under Article III of the US Constitution, judges of both the Supreme and Subordinate Courts hold their offices for life. Therefore, vacancies for appointment arise only in the event of death, voluntary retirement, or removal by impeachment. The UK ordinarily provides for a retirement age of 70 for judges (although the services of certain individual judges can be extended till they are 75). Australia and Ireland both have 70 as the prescribed retirement age, while in Canada the upper limit is 75 years.

However, one must be careful not to blindly supplant ideas from other constitutional set-ups without critical examination.

The Indian judiciary is a sui generis model, having its peculiarities and challenges. Enshrining the retirement age of judges in the Constitution was seen as a constitutional safeguard for protecting judicial independence so that judicial office-holders could render justice without fear or favour. Thus, the need of the hour is to conduct broadbased consultations with the Attorney General for India, the Ministry of Finance, the Department of Legal Affairs, the legislative departments, representatives from the legal fraternity and other key stakeholders.

(The writer is with the National Law School of India University, Bengaluru)