Fixed Tenure for Chief Justice of India- Need of the Hour         Narasimhan Vijayaraghavan

Fixed Tenure for Chief Justice of India- Need of the Hour

Narasimhan Vijayaraghavan

 

 

 

 

The Narendra Modi dispensation is well positioned to make a huge change in judiciary, if they choose to. They are able, but are they willing to bite the bullet. In one fell stroke, they could deliver a humongous impact in the higher judiciary. How? On 27th -August,2022 Justice U U Lalit will become the 49th Chief Justice of India in the 75th year of Independent India.

 

Interestingly, during the Farewell given to Chief Justice of India Justice N V Ramana, for the umpteenth time, Senior Advocate and Attorney General of India, 89 year old K K Venugopal said that ‘ Sixty five years was no age for a Supreme Court Judge and sixty two years no age for a High Court judge to retire in the India if today”.

 

New Chief Justice – Short Tenure

 

Justice Lalit is set to be the second Chief Justice of India to be elevated to the top court from the Bar, after Justice SM Sikri, who served as the 13th Chief Justice of India  from January 1971 till April 1973. Justice Lalit will serve as the Chief Justice of India for just 74 days and retire on November 8, 2022. The shortest tenure so far has been 17 days, served by Justice Kamal Narain Singh in 1991.

 

It is unfortunate that Justice Lalit would have a short tenure. Before he even begins, he may be bidding goodbye. It is time India woke up to have a longer tenure for the Chief Justices of India. It would lend meaning and scope for them to make a mark and  deliver on their dreams and expectations,as head of the judiciary. Otherwise, the position would become a mere ceremonial crown on the cranium.

 

Constituent Assembly on Retirement Age

 

The Modi dispensation could quickly move in to enhance the retirement age of High Court judges to 65 and Supreme Court judges to 68. It is long overdue, as longevity in India is over 70 today,  compared to what it was when our forefathers debated to fix the ages on 26th Nov,1949.

 

The maverick member of our Constituent Assembly K T Shah  said this during the debates, “‘I suggest, that the practice which exists in England, and which existed quite recently in U.S.A. of allowing judges to continue in their office during good behaviour, that is, practically for the rest of their lives, should be accepted”.

 

Jaspat Roy Kapoor was brutal when he countered with, “ I know that sometimes there have been judges in the High Court who even before they have attained the age of sixty 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”.

 

As always, Babasaheb  Dr. Ambedkar left his indelible imprint,  having the last word ,” I entirely agree that sixty-five 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 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”.

 

Unfortunately, the said provision to appoint adhoc judges has rarely been tapped into. Instead, we find judges retiring in the pink of their health and unavailable for judicial service, when their ‘crystallized intelligence’ as Harvard Professor Arthur C Brooks calls it, in his best seller ‘From Strength to Strength’, could be utilized best, instead of being available for their own personal  and private commercial causes. So,27th Aug,2022 might be as good a day as any other, for Union of India to get moving on this score.

 

Need for Fixed Tenure for CJI

 

Secondly, there is need for vesting the Chief Justices with a fixed tenure of at least three years. While we have the John Roberts Court in the US of A, where he has been Chief Justice for seventeen years now or earlier the famous Earl Warren Court or John Marshall Court, we have literally none in India. Or do we ? The Master of the Roster is the first among equals but as Chief Justice,  he is well placed to transform judiciary by leaving his stamp. What can Chief Justice to be Justice U U Lalit accomplish in 74 days? He may just trundle along to become former Chief Justice of India. Does it serve India?

 

Modi administration has the numbers in Parliament and States to raise the retirement ages of constitutional court judges and possibly provide a fixed tenure of a minimum of three years to CJIs. Note that Justice D Y Chandrchud may then be Chief Justice for five years , still short of the tenure his father Y V Chandrachud occupied (1978-85) as CJI.

 

The change is possible. It is necessary. Judiciary would be better for it.Chief Justice to be U U Lalit could be just the man for Indian Judiciary to pivot to a consistent and stronger path. Consistency is the core for Judiciary,  founded in law of precedents . Higher age of retirement and fixed tenure for a Chief Justice of India, may just be the recipe to give fillip to Judiciary to qualitatively attend to the pendency pandemic in our midst. You be the Judge.

 

( Narasimhan Vijayaraghavan – author of Constitution, its Making & Working,OakBridge,2020/2021- and practicing advocate in the Madras High Court)