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

22 August 2017
Rajendra Prasad, the first president of independent India, with M Patanjali Sastri, the second chief justice, at a swearing-in ceremony in Parliament. Sastri, who succeeded HJ Kania, served for a little over 2 years.
AFP/Getty Images
Rajendra Prasad, the first president of independent India, with M Patanjali Sastri, the second chief justice, at a swearing-in ceremony in Parliament. Sastri, who succeeded HJ Kania, served for a little over 2 years.
AFP/Getty Images

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.

Keywords: Constitution indian constitution Chief Justice of India JS Khehar Constituent Assembly Debates Constituent Assembly of India judicial independence judges Supreme Court of India CJI courts age of retirement
COMMENT