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Raising retirement age for judges: judicial wisdom doesn't depend upon age

Saurav Datta | Updated on: 10 February 2017, 1:50 IST

A quarter of a century ago, Justice Oliver Wendell Holmes, who adorned the US Supreme Court bench, said: "The life of law has not been logic; it has been experience".

But does age alone bring experience or judicial wisdom? And, in a country like India, torn apart by deep inequities in the field of access to justice, what role should the age of judges play?

A recent Parliamentary Committee report has recommended that the retirement age of members of the higher judiciary be raised - from 65 to 68 years for Supreme Court judges and from 62 to 65 years for High Court judges.

A Parliamentary panel has recommended raising judges' retirement age in order to tackle pendency

The panel has cited clogged court docket and the soaring rise in case pendency as the reasons for raising the retirement age for judges.

But then the question that needs to be asked is - would this recommendation, if implemented as a legal measure, enhance people's access to justice? For, in the ultimate bargain, isn't that the final goal of the law and justice delivery system?

Also read - Judiciary facing credibility crisis, Bar should cooperate: CJI TS Thakur

A Constitutional hurdle?

Article 217 of the Constitution of India sets the cut-off ages of retirement of judges, and it can be changed only through a constitutional amendment.

In 2013, Arun Jaitley, then Leader of the Opposition in the Rajya Sabha, voiced his opposition to raising the retirement age of judges, contending that judicial merit and integrity should be the sole criteria for anyone to sit on a Bench. He is presently the finance minister in the Union government.

But more significant than Jaitley's statement is the fact that the 114 Constitution (Amendment) Bill, which was brought in to amend Article 217, was brought before Parliament in 2013 but lapsed because it was neither discussed nor debated. And it hasn't been revived since.

Now, after the NJAC court saga, where the government stated it would not intervene in judicial appointments, how would the government implement the panel's recommendation?

That appears as a distant possibility at present, since no fresh Bill has been brought before Parliament at present. 

Age, experience, and prejudices

In 1992, bestselling author of legal thrillers, John Grisham, wrote and published a suspense novel titled The Pelican Brief, in which he took swipes at ageing judges, albeit in a subtle manner.

Grisham is said to have been alluding to the US Supreme Court Chief Justice Anthony Kennedy - he was wheelchair-bound, accused of being senile, and left the bench only when he breathed his last. He passed away at the ripe old age of 93, and with passing age, was accused of increasing judicial bias. In the US, judges are appointed for life and there is no retirement age.

There is no retirement age for judges in US. Some judges have become more retrogressive with age

Similar was the case of Justice Antonin Scalia of the US Supreme Court, who passed away recently at the age of 78. As his age grew, so did his mysogynist and homophobic biases.

On the other hand there are, Lady Hale (of the UK Supreme Court) and Justice Ruth Bader Ginsburg (of the US Supreme Court) - both octogenarians, who have only been more progressive in their rulings as their ages advanced.

But then, when did exceptions ever prove the rule?

Here in India, the huge pendency of cases is only the tip of the judiciary's own 'Tower of Babel'. Any talk about reforming the judiciary only centres upon the pendency aspect, without looking into the deeper structural problems, such as it's caste, class, and an increasingly neo-liberal bias.

Raising the retirement age would be nothing other than a knee-jerk reaction, only skimming the surface.

The views expressed here are personal and do not necessarily reflect those of the organisation.

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First published: 12 April 2016, 7:44 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.