Can judges be notched on a scale of efficiency and given the benefit of a tenure extension? While the government has reservations, the judiciary has no model to measure productivity
By Sanjay Raman Sinha
As long-winded arguments and a slow judicial process takes its toll on the huge backlog of pending cases, the whole system is weighed down by chronic fatigue which adversely impacts its stakeholders. Suggestions on ways and means to improve the productivity of the system have always included increasing the retirement age of judges. This time, however, the suggestions also stressed on productivity of judges as well.
In August 2023, the Standing Committee on Law and Personnel had submitted its 133rd report entitled: “Judicial Processes and their Reforms”, wherein it had recommended a performance appraisal system for extending the tenure of judges of the Supreme Court and High Courts beyond the existing retirement age. It recommended: “Increasing the retirement age for Supreme Court and High Court judges and amending the relevant Articles of the Constitution. Additionally, a system of appraisal may be devised by the Supreme Court Collegium to evaluate the performance and health conditions of judges before extending their tenure.”
However, the suggestion was shot down by the government on the specious logic that extending the retirement age of Supreme Court and High Court judges based on their performance may not be practical and will “further erode” the powers of Parliament and may also result in “undue favouritism”.
As of now, the Supreme Court judges retire at the age of 65 years while High Court judges retire at 62. However, there always has been a strong case to increase the age of judges. In fact, retirement age of judges had always been mulled and pondered over by the judiciary and the government alike.
The UPA government had brought a bill in 2010 with a provision to increase the retirement age of High Court judges from 62 years to 65 years. This bill was introduced in the Lok Sabha, but it was never discussed as the Lok Sabha was dissolved. Some time back, then Attorney General KK Venugopal had opined that if lawyers can argue cases lifelong, why should Supreme Court judges retire at 65? The government is quite circumspect about increasing judges’ retirement age by including competency or performance as an indicator. The government apparently tries to avoid situations where judges’ tenure or appointment gets out of its hand.
PK Malhotra, former Law Secretary, spoke to India Legal on the issue: “Keeping in view better health conditions, age expectancy, huge pendency and disproportionate number of judges to deal with these cases, there is a need to consider increasing the age of retirement of judges. However, linking the age of retirement to performance will bring subjectivity and likely to erode independence of judges in performing their duties. Article 224A of the Constitution, which was inserted by 15th amendment of the Constitution, makes provision for appointment of retired judges at sittings of the High Court. Modalities can be worked out to make use of this provision. Tenure extension based on performance is not a desirable solution as it will bring in an element of subjectivity. We already hear a lot about it in the super imposed collegium system in appointing judges in the High Courts and the Supreme Court.”
In fact, Parliament has the power to increase the retirement age of judges, but it will have to amend Article 217 of the Constitution. Also, if the strength of the court or the number of judges has to be increased, then Article 124 of the Constitution will have to be amended, which defines the power of the court. The prevailing conditions are such that there is no system to assess the work of judges qualitatively. Quantitatively the work can be measured by number of cases disposed over a particular time frame, but how to measure quality?
Aruneshwar Gupta, senior advocate at the Supreme Court, told India Legal: “There is no system to gauge the quantity or quality of work of judges. In the Supreme Court, we have either a two-judge bench or more. In the benches, either the judge is signatory or he has written the judgment. Now if we look at the judgment-signatory ratio, it signifies the quantity of work of the bench or a particular judge. If there is a three-judge bench then every judge has to have at least 33% disposal rate. If there is a two-judge bench then every judge has to have a 50% disposal rate. This will take care of quantity. If we talk of quality, we have to look at the number of judgments which have gone to the Supreme Court and have been upheld or reversed. This can form the basis of qualitative judgement analysis.”
This has to take into account the work pressure on judges. The judge-population ratio in India is 20 judges per 10 lakh people, the lowest in the world. In its 120th report of 1987, the Law Commission had stated that for every 10 lakh population, 50 judges are required. With overworked judges it will be a challenging and rather unfair proposition to impose the quality condition. Nor would a straight raise in retirement age work.
Justice Sudhir Aggarwal, former judge of the Allahabad High Court, makes this point: “We should certainly make a system wherein we can decide the quantity and quality of a judge’s work. That is why we need an appraisal system. Merely increasing the age of retirement of judges won’t work.”
If we look at the work models of foreign courts, we gain some insights. The retirement age of judges in supreme courts of many foreign nations is above 65 years. In the Supreme Court of Australia, it is 70, in the Supreme Court of Canada it is 75, in Israel it is 70, and in the United States, there is no retirement age of judges. They can serve and work till disability or death. In a study conducted in the United States, it was found that judges productivity increases by more than 25% after the introduction of mandatory retirement. With induction of younger judges, the efficiency of judiciary became better.
However, we can’t discount the fact that experience counts, and as judges mature, their body of knowledge and experience makes them more well equipped to handle cases. They also become increasingly adept in handling a particular genre of cases, and of course, cases with complex questions of law and constitutionality. The same judges who retire find a berth in tribunals and other quasi-judicial bodies and deliver quality work till late in life. Can’t such judges be retained and not retired?
Justice Narendra Chapalgaonkar, former judge of the Bombay High Court, mooted that productive, retired judges should be inducted after retirement. He said: “If some retired judges are willing, capable and efficient then the chief justice of High Court should recommend their appointment as ad hoc judges.”
During the enactment of constitutional provisions related to the retirement age of High Court judges, TT Krishnamachary and KM Munshi had strongly opposed making retirement age above 60. They felt that judges’ productivity decreased after a certain age. Later on in 1962, the Constitution was amended to raise the retirement age of High Court judges to 62. Still later, former CJI MN Venkatachaliah had suggested in one of his reports that the retirement age should be made 68 years.
Speaking to India Legal, Justice Venkatachaliah recounted his experience in leading a highly productive team which had reduced massive pendency in record time. He said: “The problem in judiciary is in the lack of speed in the disposal of cases. We concentrated on the problem during my tenure. My team of judges did enormous work. From 1991 to 1998, in eight years, the backlog of cases fell from four and a half lakhs to 19,000. That was the collective work of all the judges. There were great judges in our time. I am not in touch with the system now, but can say that those years were very productive.”
Clearly a focussed approach can work wonders both qualitatively and quantitatively. A large number of cases can be disposed of keeping in mind the quality of disposals. All said, instead of hunting for flashes of talent and efficiency in the judges pool, it would be much better to create a productive environment under the command of good leaders, who lead their teams in short spurts of highly focussed productive assignments. A model to measure judicial efficiency needs to be developed, and high performing judges who would like to opt for tenure extension should be allowed to do so.