Context

Following are the reforms needed in the various aspects of the higher judiciary

Removing the disparity between retirement ages of HC and SC judges

• High Court judges now retire at 62 and Supreme Court judges at 65.
• It is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges.
• There is no good reason for this difference.
• Intense pressure and competition: The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
• If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court.
• There is good work to be done in the High Courts, and we need good men there.

Create a cadre of public service for retired judges

• SeveralSupreme Court judges focus on arbitrations after retirement.
• A minority of judges devote themselves to public service; sadly, this is a very small minority.
• Another lot are appointed to various constitutional posts and tribunals and commissions.
• It would be worthwhile reform to create a cadre of public service for retired judges and from this pool 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.
• We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.

Reform in the process of appointment of Chief Justice of India

• No constitutional basis: It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India.
• The Constitution mandates no such thing.
• Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
• The requirement about appointing the seniormost judge to be the CJI was devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an usurpation of the President’s power.
• There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation.
• Let all serve equally under the constitutional throne for the entire length of their tenure.

But who then shall be the CJI?

• As per the Constitution the judges of the High Court, senior advocates and distinguished jurists are eligible for the appointment as the judge of the Supreme Court.
• Chief Justice of HC: When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader.
• The same process is followed in the appointment of the Chief Justice of the United States Supreme Court.
• Security of tenure: The appointee should have a clear three-year term.
• He should not function as the primus super pares — calling the shots and having their unfettered way.
• He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.

Conclusion

Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come.

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