Indian Constitution is the sole flower in South-Asia’s constitutional graveyard. Adopted on 26 November, 1949, it has survived since the world’s largest democracy- India and stands strong to do the same for years to come. This is particularly glaring when compared to the constitutional fate of India’s neighbors.
India was fortunate to have some of the best minds to work on the framing of our Constitution as members of our Constituent Assembly. The Indian Constitution is an elaborate one, taking cues from the experience of various democracies. The Indian constitution is the most well-thought statute which has been scrutinized by 389 veterans. It is adopted after much needed deliberations, discussion after foreseeing the necessary consequences. India’s founders gave us our Constitution. We must prove to them that we can keep it. However, contemporary political developments have raised alarm over the Constitution’s well-being and integrity.
“In today already walks tomorrow. Because the future is much like the present, only longer.” The way the constitution has been preserving Indian democracy since a long time is praise-worthy. Article 124 of our reverend constitution explicitly puts a bar on the age of judges of honorable supreme court. It states that “a judge shall hold the office until he attains the age of 65 years.”
Under article 124(2) it is said that:
Article 124(2) provides that every judge of supreme court will be appointed by the president in consultation with the chief justice of high courts and supreme court and he will remain in the office till he attains the age of 65 years or completes a tenure of 1 year, whichever is earlier.
Fixing tenure of Chief Justice of India may preclude several justices from taking opportunity to serve the country as chief justices owing to age constraints despite being competent and efficient to be elected as Chief Justice of India. The preclusion will not only deny equality of opportunity to certain class of judges from serving as chief justice but also abridge their right to equality under article 14.
“IF JUSTICES FACE INJUSTICE ON THIS LAND OF LAW, IS THERE ANY WAY TO PROTECT THE RULE OF LAW.”
Though this verity cannot be refuted that Article 14 is not free from reasonable restrictions but provided that such restrictions must:
- Have some intelligible differentia ([1]The expression “intelligible differentia” means difference capable of being understood. A factor that distinguishes or in different state or class from another which is capable of being understood.)
- Such differentia must have some rational nexus with objective sought to be achieved. This was held in the case of, “K Thimappa v. Chairman, Central board of Directors, CEBI.[2]
It was held that “When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object which the legislature has in view.” But, “ipso facto”, neither of these conditions are fulfilled as denying equal opportunity to other incompetent judges of Supreme Court is not reasonable and nor it has any rational nexus with the objective sought to achieved as if efficient judges would be denied opportunity, then the object of effective administration cannot be achieved.
Recently, while bidding farewell to the former Chief Justice, Reverend Attorney General, K.K. Venugopal remarked that “tenure of chief justice of India must be fixed to 3 years and it will help in continuing rules made by one particular Chief justice and the administration will not undergo frequent changes.”
But what is experienced is that it is not the CJI which changes the rules by will, but the conditions prevalent in that country that compel him to make changes for effective implementation and strengthening democracy. The rules which might have been effective in the past may not be effective in the present. Similarly, rules which are effective in the current scenario might not be able to cope up with the needs of future. The mindset, society, relations and everything else is changing and a CJI have to give decisions that best suits the interest of individual as well as the society. Hence, fixing/ not fixing the tenure of judges does no good for effective implementation.
Further, Article 128 of Indian constitution inter alia provides that retired judges can be appointed as judges with their consent.
Article 128: it states that if deemed necessary by the chief justice of the Supreme court he may appoint, with discussion with the president any person who has acted as a judge of Supreme, High or Federal court to act as a judge of supreme court and he shall then be allowed to all privileges and opportunities.
It is important to bear in mind that the independence of the judiciary is one of the central values on which our Constitution is based. No other constitutional agency is shielded as are the superior courts in our country with so many built-in safeguards. The Judges can, if they choose to, be guided by the doctrine of conscience only while discharging their duties. They are not expected to be under any kind of external pressure. They are circumscribed by ‘expectations of neutrality and impartiality’ and by the traditions of the legal profession which is always keeping a watchful eye on every action of a Judge. In all countries where the rule of law prevails and the power to adjudicate upon disputes between a man and a man, a man and the State, a State and a State, and a State and the Centre, is entrusted to a judicial body, it is natural that such body should be assigned a status free from capricious or whimsical interference from outside and the Judges who constitute it should be granted a security of tenure that lifts them above the fear of acting against their conscience.
Supreme court in its recent judgement of Lok Parihar for the appointment of ad-hoc judges in high-courts under article 224-A, said that while 224-A is a fantastic idea, it should be utilized in such a way that rather than calling upon the retired judges, the consent of sitting judges, who are good and deserving, should be taken so that they will continue to act as additional judges of the court while until vacancies are filled up.
Ex- facie it is clear from the remark of the court that efficiency reduces with age even if legal acumen is at the peak and therefore fixing a tenure may lead to exceeding of age limit of 65 years as prescribed and can impact efficiency of administration.
Comparative Analysis with USA
The US Supreme Court may be the world’s oldest, but it is the Supreme Court of India that is referred to, as the ‘strongest court of the world’. Consequentially, the CJI can claim to be the most powerful Chief Justice of the world, notwithstanding the abbreviated tenure.
Supreme Court of India judges (including the CJI) retire upon attaining 65 years [Article 124 of the Constitution of India 1950], whereas US supreme court judges hold office for life. Ergo, once appointed, a judge in the US-SC is not circumscribed any DoR (Date of Retirement) and can continue till death, resignation or impeachment.
Another extremely interesting distinguishing characteristic of the US-Supreme Court vis-à-vis the Supreme Court of India is the absence of the ‘seniority rule’ in the appointment of the Chief Justice of their respective courts. India strictly follows the seniority rule in the appointment of judges but USA does not. Justice John G. Roberts, was sworn directly as the CJ of the US-Supreme Court in Sept 2005, when he was not even an associate/sitting judge of the US-Supreme Court and hence was the junior-most appointee amongst all the 9 judges of the US-Supreme Court at the time of his appointment.
Unlike the Supreme Court of India, where the judges sit in benches of two, the US-Supreme Court sit en banc i.e., all 9 judges sit and hear all cases together as a part of one single bench. There is no question of the CJI acting as the ‘master of the roster’ or allocating cases to other benches. Judges in the US-Supreme Court are appointed by the President, subject to confirmation by the Senate i.e., the Upper House of the US Congress/Parliament.
Before concluding, let us note that it was reported in 2016 that government was not to fix tenure for chief justices of both high court as well as the supreme court. The commission appointed thereunder reported that:
- Fixing tenure may give a handle to certain judges to subvert the appointment of others.
- The judges nearing retirement age may fail to land the job despite seniority and an impressive track record.
Therefore, concluding the above stated lines it can now be said that the tenure of Chief justice of India should not be fixed because if this has to be done, many provisions of Indian parliament will have to be amended and moreover, it may lead to arbitrariness in the country. It will not be in accordance with Article 14 of our constitution and therefore promote inequality of opportunities. The Chief Justice has its sole authority and hence it shouldn’t be meddled with.
This article is authored by Shivi Singhal, student at Rajasthan University.
[1]https://www.legallyindia.com/
[2]AIR 2001. SC 467,
