Saturday, April 14, 2007

Judges' Tenure: Need for rethinking

Can we find remedy for the ills of our judiciary by changing the tenure of Judges of Higher Judiciary? This article in Deccan Herald here argues that it can make a difference. And I tend to agree with the author. We need to compare the tenure of Chief Justice Chandrachud (the longest tenure a CJI ever had], with that of others to know what contribution a longest serving CJI could make. Alternatively, we should also bring out the extent of damage that a short-tenure CJI could cause to the institution. In the past, we have had CJIs for just 14 days, or 30 days, and there were always controversies surrounding the cases heard and disposed by them, not on merit, but on extraneous considerations. The author, N.Haridas, is unhappy with the seniority rule, because in his view it has led to selection of mediocre persons as Judges. The Emergency aberration notwithstanding - when India witnessed a phase of committed judiciary, having broken the seniority rule, Haridas says the earlier system wherein seniority was not emphasised, is still worth a try. Only recently in our blog, our co-bloggers, Arun Thiruvengadam and Vivek Reddy were discussing the deteriorating quality of judgments of our Superior courts, citing an article written in EPW by A.G.Noorani. Part of the reason, perhaps is that our retiring Judges are in a great hurry to write their judgments of cases heard by them, before they retire, and this deadline pressure leads to compromise with objectivity, balance, and consistency. If the Judges of the High Courts and Supreme Court have permanent tenures without retirement (as in the U.S.), will it not be an answer to many of these ills? A fixed tenure for the CJI is desirable to ensure proper leadership and administrative qualities in a CJI, but simultenously, we need to remove the retirement age-limit for the Judges, to make them truly independent, and make them less dependent on Executive, for post-retirment benefits.

1 comment:

Arun Thiruvengadam said...

Thanks for the link, and for the stimulating analysis. Both of you persuasively argue for a change in the present system, which does pose great problems. I suspect, however, that the response of those who defend the status quo will be that we have arrived at the present system after having tinkered with a few alternatives, and the advantage of the current system is that it reduces chances of political intervention (as happened in the cases of the supersession of judges in the 70s). Such defenders will argue that for all its ills, the current system does provide for certainty and stability, which may be more desirable for judicial independence than considerations of merit. This argument is not entirely without basis, because those who justified supersession of judges under Indira Gandhi did argue that the judges who were ultimately appointed were 'better' than those who were superseded.

While I find your argument about having CJs appointed on considerations of merit, and the arguments for longer judicial tenures more generally persuasive, I am unconvinced that the solution is to provide for life tenure for judges.

While the American system of judicial review (which was a unique model at the beginning of the 20th century) has now been replicated in most liberal democracies, we may want to reflect on the fact that there is (to my knowledge) no other system which has chosen to emulate its requirement of life tenure for judges. Indeed, many voices within the US (including the current Chief Justice) have argued against the existence of life tenures for judges). Here are links to two short articles which explain the problems caused as a result of having life tenures for judges:

http://writ.news.findlaw.com/lazarus/20041209.html

http://volokh.com/archives/archive_2005_07_31-2005_08_06.shtml

There may be other solutions for the problem of short tenures for SC judges as a result of the trends indicated by Haridas. One of these could be a proposal to extend the retirement age beyond 65 to 70 or 75. Or, alternatively, SC judges cold have fixed tenures on the Court, after their appointment to the apex court, subject to an outer limit (as is the model in South Africa currently).

I am also not convinced that the problem of the fall in quality of judgments is traceable to the retirement age. The age of 65 applied throughout the history of the Supreme Court, but that does not explain the woeful quality of recent judgements, despite access to the research-wonders of the internet and computers. The problem there is in the quality of people who now become judges, which is at times ascribed to the low salary structures of judges, the lack of incentives for good lawyers to make the transition to the bench, etc. But, that of course, is getting into an entirely different debate ...