Musings on the Constitution-XXII Narasimhan Vijayaraghavan

Musings on the Constitution-XXII
Narasimhan Vijayaraghavan

We still have a live debate on the age of retirement for constitutional judges. Advancements in science and medicine have ensured that longevity now is longer. The Judges do not age easily. They look and behave fit and healthy. Sometimes, when a good or a great leaves, one feels and fears it may be a little too early, as he or she could have continued to provide wisdom from the bench. The Judges like soldiers do not fade away. The more voluble ones have the public’s eyes and ears. Of course, if they have the networks, it does not take long for them to park themselves in a sinecure position, of which there are plenty going around, India have Tribunalised big. Then, we have the Commissions or Committees. Least of all Alternate Dispute resolution mechanisms in Arbitrations and Mediations. The Judges can keep busy their legal lives and bank accounts too. Oh! I forgot Rajya Sabha nominations.

Nehru continued, and it is worth a recall in full as it is a fascinating study of the human physiology and sociology.
“With regard to judges, and Federal Court Judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense….We have to get the best out of the training you give to a person. You should not, when he is quite trained and completely fit, discard him and get an untrained person to start afresh. Now, it is difficult, of course, to say when a person is not working to the peak of his capacity. In different professions the peak may be different with regard to age. Obviously a miner cannot work as a miner at sixty or anywhere near sixty. An intellectual worker may work more. So also about writers. It will be manifestly absurd to say that a writer must not write after a certain age, because he is intellectually weak. Or for the matter of that, I rather doubt whether honourable Members of this Assembly will think of fixing an upper age-limit for membership of this Assembly, or for any Cabinet ministership or anything of that kind. We do not do it. But the fact is, when you reach certain top grades where you require absolutely first-class personnel, then it is a dangerous thing to fix a limit which might exclude these first-rate men. I would give you one instance which came up in another place. It was the case of scientists. In such a case, can we say that he cannot work because he has reached the age of sixty?

As a matter of fact, some of the greatest scientists have done their finest work after they reached that age. Take Einstein. I do not know what his age is, but certainly it should be far above sixty; and Einstein is still the greatest scientist of the age. Is any government going to tell him, “Because you are sixty, we cannot use you, you make your experiments privately”?. There are some scientists in India-first class scientists-and the question came up before me, should they retire? I pointed out that we are already short of first-rate men, and if you just push them out because of some rules fixed for some administrative purpose, which have nothing to do with the highest class of inventive brain work, it would be a calamity for us. We would not get even the few persons we have got for our purpose.
In fact there are none at all. In America the greatest judge that I believe the Supreme Court produced went on functioning till the age of ninety-two-Holmes-and he went on functioning extremely well up to the age of ninety-two for thirty or forty years running. If you go to the Privy Council of England I do not know what they are now, but some years back when I went there I saw patriarchs sitting there with long flowing beards; and their age might have been anything up to a hundred years, so far as looks were concerned. May be, you may over do this type of thing. But the point is we must not look upon this merely as a question of giving jobs to younger people. When you need the best men, obviously age cannot be a criterion. A young man may be exceedingly good, an old man may be bad. But the point is if an old man has experience and is thoroughly fit, mentally and otherwise, then it is unfortunate and it is a waste from the State’s point of view to push him aside, or force him to be pushed aside, and put in some one in his place who has neither the experience nor the talent, perhaps. We are going to require a fairly large number of High Court Judges. Of course the number of Supreme Court Judges will be rather limited. Nevertheless, there are going to be more and more openings, and the personnel at our disposal is somewhat limited. Judges presumably in future will come very largely from the bar and it will be for you to consider at a later stage what rules to frame so that we can get the best material from the bar for the High Court Federal Court Judges. It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way. Now, taking all these into consideration I feel that the suggestion made by the Drafting Committee with regard to Federal Court Judges, that the age-limit should be sixty-five, is by no means unfair, for it does not go beyond any reasonable age-limit that might be suggested. Many of us here are, as you are aware, dangerously near sixty or beyond it.

Ginsburg is 87 today
Well, we still function, and function in a way which is far more exhausting and wearing than any High Court Judge can be. We are functioning presumably because in the kindness of your heart, in the country’s heart, you put up with us, or think us necessary. Whatever it be, you can change us and push us out if you do not like us. There is no age-limit. But the High Court Judges and Federal Court Judges should be outside political affairs of this type and outside party tactics and all the rest, and if they are fit, they should certainly, I think, be allowed to carry on. Of course every rule that you may frame may give rise to some difficulties and undesirable men may carry on. But a man appointed to the Federal Court is presumably one who has gone through an apprenticeship in the High Court somewhere. He cannot be absolutely bad, otherwise he would not have got there. He cannot be absolutely bad, otherwise he would not have got there. He must have justified himself in a High Court as Chief Justice or something. So you are fairly assured that he is up to a certain standard.

Ginsburg is 87 today
If so, let him continue. Otherwise the risk is greater, of pushing out a thoroughly competent man because of the age-limit, because he has attained the age of sixty. So I beg the House to accept the age-limit of 65 for Federal Court Judges that has been suggested.”
Nehru-Ambedkar axis on any issue……
(Author is practising advocate in the Madras High Court)

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