Legal Age: The Constituent Assembly Discusses Judicial Independence and Judges' Retirement

On 28 August, Jagdish Singh Khehar will turn 65, and, as required by the Constitution, retire from his post as the chief justice of India. Khehar was sworn in as chief justice on 4 January—giving him a less than eight months to serve as India’s premier judicial official. Justice Dipak Misra, currently 63 years of age, will succeed Khehar. Misra too, will serve for a relatively short while—he turns 65 in October 2018. The terms of India’s chief justices have lasted from several years to mere days—in 2004, S Rajendra Babu held the post for 30 days; Kamal Narain Singh, who ascended to the post in late 1991, held it for 17 days.

Over the years, the retirement age and the length of the term for justices at the apex court, and the chief justice in particular, have been subjects of passionate discussion—while justices are forbidden from practicing law after retirement, they can accept government jobs, or head judicial commissions, among other roles. The lure of post-retirement appointments, some argue, could influence a judge’s decisions during her tenure.

The Constituent Assembly was not unaware of such pitfalls. In the following extract from the discussion—which followed the debate on judicial appointments—members such as KT Shah, Jawaharlal Nehru, and BR Ambedkar discuss whether a fixed age for retirement could impact judicial independence. While Shah advocates for a lifetime appointment for judges of the Supreme Court, Nehru and Ambedkar, among others, explain why they find his proposition lacking.

KT Shah: Mr President, sir, I beg to move that in clause (2) of article 103, for the words “until he attains the age of sixty-five years” … be substituted. The amended proposition would read: “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 may be necessary for the purpose and shall hold office during good behaviour or until he resigns; provided that any such Judge may resign his office at any time after ten years of service in a judicial office and if he so resigns, he shall be entitled to such pension as may be allowed under the law passed by the Parliament of India for the time being in force.”

This is another way in which I am trying to secure the absolute independence of the judiciary. This means that the appointments will be not for a definite period, or within a prescribed age-limit, on attaining which a judge must compulsorily retire, but, as is the case in England, and as was quite recently the case in the United States of America, judges—particularly of the Supreme Court—should be appointed for life. They should not, in any way be exposed to any apprehension of being thrown out of their work by official or executive displeasure. They should not be exposed to the risk of having to secure their livelihood by either resuming their ordinary practice at the bar, or taking up some other occupation which may not be compatible with a judicial mentality, or which may not be in tune with their perfect independence and integrity.

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The supreme principle that I have all the time been pressing upon the house is the necessity of securing the absolute independence of the judges. That I have attempted to secure, first, in the previous amendment, by the procedure for their appointment [Shah advocated for judges to be appointed only after the approval of at least two-thirds of both house of parliament], and here, secondly, by the term of their appointment being made for the duration of good behaviour, that is to say, practically for the rest of their lives. If for any reason it becomes necessary for a judge to wish to retire from his office, or even to be removed, without of course any censure being attached, then he should be entitled to pension sufficient to maintain him in independence and in perfect security and comfort— not necessarily affluence—during the rest of his life. This, sir, is such a simple principle that I hope there will be no objection taken to it and that the proposition will be accepted.

Jaspat Roy Kapoor: Mr President, Sir, I beg to move that in clause (2) of article 103, for the word “sixty-five” the word “sixty” be substituted and the words “The President, however, may in any case extend from year to year the age of retirement up to sixty-five years” be added.

Sir, my reasons for moving this amendment are there. Firstly, the ordinary age of retirement in the case of government servants is 55 years [it has since been changed to 60], but in the case of high court judges it has been raised to 60 [it has since been changed to 62]. I see no reason why a further extension up to the age of 65 should be granted in the case of judges of the Supreme Court. They must, after putting in long years of service retire and make room for others to come in. I know that the chief justices in a conference which they held some time ago, recommended that the age of superannuation of the judges of the Supreme Court should be 65. I have not been able to find in the proceedings of that conference any cogent reasons urged by the learned chief justices. The main reason which they have urged is that if the age of superannuation is not raised to 65 years, there will not be enough attraction to the high court judges to accept posts in the Supreme Court. I must confess that I felt considerably disappointed at this sort of argument being urged by the learned chief justices. We should not accept this recommendation of the chief justices merely in order to provide attraction to such judges of the high courts with whom monetary considerations weigh the most.

My second reason is, and I urge this reason with due respect to such honourable members of this house who are above the age of 60, that very often a person who has gone beyond the age of 60 is not very fit and is not mentally alert, to perform the strenuous duties of a judge of the Supreme Court. I know that sometimes there have been judges in the high court who even before they have attained the age of 60 are not mentally fit to discharge the functions of a high court judge. Sometimes, we have found high court judges—and I say this with due respect to them—we have found them sleeping and snoring when the learned advocate is going on speaking.

President: That does not depend upon age.

Jaspat Roy Kapoor: Of course, not always, sir. I only say that sometimes it happens that a person who is even nearing the age of 60 is not fit to perform the strenuous duties of a high court judge, and much less to be able to perform the duties of a judge of the Supreme Court. I know that we cannot say that generally it is so, but I can say that sometimes it is certainly so. Therefore, my submission is that if we make it a definite rule that every judge of the Supreme Court shall go up to the age of 65, it may not be safe to do so. I know, of course, honourable members of this house, a good many of them, are beyond the age of 60 and they are an ornament to the country. But it is not everybody who goes beyond the age of 60 that continues to be so fit and so mentally alert.

And then, sir, my third reason is—and that is the most important of the reasons—that one who has served and has earned handsomely from the government up to the age of 60 years should be prepared to retire and serve the society thereafter in an honorary capacity. … In our country, sir, the ideal, the ancient ideal has been that every person in the fourth stage of his life must become a Sanyasi and must serve society in an honorary capacity. This is the standard which has been set before us by our ancient sages, and I think, sir, we can reasonably expect of everybody, and more particularly of the learned ones like the judges of the Supreme Court, to set a good example for everybody else.

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PK Sen: Sir, I move that after the second proviso to clause (2) of article 103, the following new proviso be inserted: “Provided further that where a Judge resigns his office on grounds of ill-health, he shall be entitled to pension as if he has continued in service until the age of sixty-five years.”

The object of this amendment, sir, is to keep the judge, who has to retire on account of impairment of health, free from fear or temptation and free from the allurements of holding some office in the executive line or in the political field. It is an admitted principle, and no one is this house, I am sure, will take exception to it, that the judge of the Supreme Court, or the judge of the high court, should be above all fear and temptation. Now, here is the case of a man who has served at the time when he was in health, but while he is 57 or say, 61 or even 62, he feels that any day he might have to retire on account of ill-health. Well, there is a natural temptation to provide something during the period when he will be out of office. We are not unaccustomed to the spectacle of a man in this country who has been a judge of a high court, then a member of the executive council of the governor-general of India, then back again to his province as a member of the executive council of the province, and further again transported to the bench of the high court. Well, this sort of thing should be avoided, and as a matter of fact if a man feels that he has got no provision at all, then he may have to go begging as it were for some employment or office or occupation, which may keep the wolf from his door. This is the object. I think in this connection. I may draw the attention of the House to clause 7 of article 103 [now clause 7 of Article 124], which is also germane to this issue. It says: “No person who has held office as a Judge of the Supreme Court shall plead or act in any Court or before any authority within the territory of India.”

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Jawaharlal Nehru: Sir, I wish to say about one particular matter with which some amendments have dealt, that is, the age-limit of the Supreme Court judges. … It is rather difficult to give any particular reasons for a particular age, 65 or 66; there is not too much difference. After much thought, those of us who were consulted at that stage thought that 65 would be the proper age limit.

This business of fixing age limits in India in the past was, I believe, governed by entirely the service view. … How you can get the best service out of an individual for the nation. Each country spends a lot of money for training a person. Now, we have to get the best out of the training you give to a person. You should not, when he is quite trained and completely fit, discard him and get an untrained person to start afresh. Now, it is difficult, of course, to say when a person is not working to the peak of his capacity. In different professions, the peak may be different with regard to age. Obviously, a miner cannot work as a miner at 60 or anywhere near 60. An intellectual worker may work more. So also about writers—it will be manifestly absurd to say that a writer must not write after a certain age, because he is intellectually weak. Or for the matter of that, I rather doubt whether honourable members of this Assembly will think of fixing an upper age limit for membership of this Assembly, or for any cabinet ministership or anything of that kind. We do not do it.

But the fact is, when you reach certain top grades where you require absolutely first-class personnel, then it is a dangerous thing to fix a limit which might exclude these first-rate men. I would give you one instance which came up in another place. It was the case of scientists. In such a case, can we say that he cannot work because he has reached the age of 60? As a matter of fact, some of the greatest scientists have done their finest work after they reached that age. Take Einstein. I do not know what his age is, but certainly it should be far above 60; and Einstein is still the greatest scientist of the age. Is any government going to tell him, “Because you are sixty, we cannot use you, you make your experiments privately”? …

With regard to judges, and federal court judges [before being designated the Supreme Court of India, the apex court was termed the federal court] especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same time it is highly responsible work, and in all countries, so far as I know, age limits for judges are far higher. In fact, there are none at all. In America the greatest judge that I believe the Supreme Court produced went on functioning till the age of 92—[Oliver Wendell] Holmes [Jr]. …

We must not look upon this merely as a question of giving jobs to younger people. When you need the best men, obviously age cannot be a criterion. A young man may be exceedingly good, an old man may be bad. But the point is if an old man has experience and is thoroughly fit, mentally and otherwise, then it is unfortunate and it is a waste from the state’s point of view to push him aside, or force him to be pushed aside, and put in some one in his place who has neither the experience nor the talent, perhaps. We are going to require a fairly large number of high court Judges and Supreme Court judges. … Judges presumably in future will come very largely from the bar and it will be for you to consider at a later stage what rules to frame so that we can get the best material from the bar for the high court and federal court judges. It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way. …

Now, taking all these into consideration I feel that the suggestion made by the Drafting Committee with regard to Federal Court Judges, that the age limit should be 65, is by no means unfair, for it does not go beyond any reasonable age-limit that might be suggested. Many of us here are, as you are aware, dangerously near 60 or beyond it. Well, we still function, and function in a way which is far more exhausting and wearing than any high court judge can be. We are functioning presumably because in the kindness of your heart, in the country’s heart, you put up with us, or think us necessary. Whatever it be, you can change us and push us out if you do not like us. There is no age limit. But the high court judges and federal court judges should be outside political affairs of this type and outside party tactics and all the rest, and if they are fit, they should certainly, I think, be allowed to carry on.

Of course, every rule that you may frame may give rise to some difficulties and undesirable men may carry on. But a man appointed to the federal court is presumably one who has gone through an apprenticeship in the high court somewhere. He cannot be absolutely bad, otherwise he would not have got there. He must have justified himself in a high court as a chief justice or something. So you are fairly assured that he is up to a certain standard. If so, let him continue. Otherwise the risk is greater, of pushing out a thoroughly competent man because of the age limit, because he has attained the age of 60. So I beg the house to accept the age limit of 65 for Federal Court judges that has been suggested.

M Ananthasayanam Ayyangar: Sir, we have now reached in the discussion of this constitution, a stage which according to me is one of the most important stages if not the most important stage in the discussion of this Constitution. The Supreme Court is the watchdog of democracy. … This is the institution which will preserve those rights and secure to every citizen the rights that have been given to him under the Constitution. Naturally, this must be above all interference by the executive. The Supreme Court … is the eye and the guardian of the citizen’s rights. Therefore at every stage, from the stage of appointment of the judges, their salaries and tenure of office, all these have to be regulated now so that the executive may have little or nothing to do with their functioning. The provisions, that have been made, have been made with an eye towards that. If amendments are moved now, each amendment must be judged by the test whether it secures the independence of the judiciary which this chapter attempts to provide for.

Then as regards the age, some young friends want it to be reduced from 65 to 60 and others want to raise it from 65 to 68. … The age 65 need not be raised nor cut down to 60. Younger man on account of their enormous energy may go into various other fields which are open to them. For the judiciary there must be a balanced mind. Immature minds are useless.

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BR Ambedkar: Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. … The second issue that has been raised by the different amendments moved to this article to the question of age. … There are some who think that the judges ought to retire at the age of 60. Well so for as high court judges are concerned, that is the present position. There are some who say that the Constitution should not fix any age limit whatsoever, but that the age limit should be left to be fixed by Parliament by law. It seems to me that is not a proposition which can be accepted, because if the matter of age was left to Parliament to determine from time to time, no person could be found to accept a place on the bench, because an incumbent before he accepts a place on the bench would like to know for how many years in the natural course of things, he could hold that office; and therefore, a provision with regard to age, I am quite satisfied, cannot be determined by Parliament from time to time, but must be fixed in the Constitution itself.

The other view is that is you fix any age limit what you are practically doing is to drive away a man who notwithstanding the age that we have prescribed, which is 65, is hale and hearty, sound in mind and sound in body and capable for a certain number of years of rendering perfectly good service to the State. I entirely agree that 65 cannot always be regarded as the zero hour in a man's intellectual ability. At the same time, I think honourable members who have moved amendments to this effect have forgotten the provision we have made in Article 107 [of the Draft Constitution, which is Article 128 of the Constitution of India] where we have provided that it should be open to the chief justice to call a retired judges to sit and decide a particular case or cases.

Consequently, by the operation of Article 107 there is less possibility, if I may put it, of our losing the talent of individual people who have already served on the Supreme Court. I therefore submit that the arguments or the fears that were expressed in the course of the debate with regard to the question of age have no foundation.

This is part of “The Argumentative Indians,” The Caravan’s series of excerpts from the Constituent Assembly Debates that reflect on subjects relevant to public discourse in the present day.