A wish list for reform in India’s higher judiciary

News: There are rumours that the age of retirement of Supreme Court of India judges is to be increased to 67 years

What should be the prioritized areas with respect to the reforms in the functioning of the Supreme Court of India?

The disparity between the retirement ages of HC (62year) and SC judges(65year) should be removed. At present, this differential retirement age puts intense pressure and competition among HC judges to make it to the top court in order to get three more years.

At present, there is no uniformity in the working of the judge’s post-retirement. For example, some focus on arbitrations, some do public service; and some are appointed to various constitutional posts, tribunals and commissions.

It would be worthwhile to disallow the retired judges from doing arbitrations. A cadre of public service for retired judges can be created. From this pool, the government can make appointments to the constitutional and statutory posts and special assignments.

Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.

The Second Judges case (1993) and the Memorandum of Procedure(MOP) has established the norm that the senior-most judge of the SC should be the CJI. However, Article 124 does not mandate such a thing. It states that the President will appoint every judge of the SC, including the CJI. It has no constitutional legitimacy. The process usurps the President’s power. Therefore, it should be reformed.

Let all serve equally under the constitutional throne for the entire length of their tenure. It would also ensure that the judges are not swayed by their aspirations to become the CJI.

Who shall be “primus inter pares”, the first among equals?

The Constitution says, the judges of the HC, senior advocates and distinguished jurists can become the judges of the SC.

Therefore, the best reputed Chief Justice of a HC who has proved himself worthy both in judicial office as well as administrative leadership can be raised to the position of the CJI.

In addition, The CJI should be given a clear term of three year rather than the present left over term.

In addition, the CJI should not function as the primus super pares. He should function in a true collegiate manner, especially in regard to the roster of allotment of cases etc.

Such a combination of CJI so chosen working with senior ranking colleagues will ensure collegium function in a more efficient and effective way.

The US Model: Such a system is invariably followed in making the appointment of the Chief Justice of the United States Supreme Court. It is part of a system designed to relieve excessive power and pressure.

Source: The post is based on an article “A wish list for reform in India’s higher judiciary” published in the “The Hindu” on 22nd June 2022.

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