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.

The Union Cabinet on Wednesday approved the extension of term of the 22nd Law Commission of India up to August 31, 2024.

The Cabinet meeting was chaired by Prime Minister Narendra Modi.

The Law Commission of India, a non-statutory body, was originally constituted in 1955. Since then, it has been re-constituted from time to time by the Central government. 

Tenure of the present Twenty-Second Law Commission of India had ended on February 20.          

Various Law Commissions have made important contributions towards the progressive development and codification of law of the country. The Law Commission has so far submitted 277 reports.

According to a release issued by the Press Information Bureau (PIB), the Chairperson and members of the 22nd Law Commission have joined the office recently.

It said both the members and the Chairman have taken up several pending projects for examination and report, the work on which was in progress. 

Therefore, the Central government has decided to extend the tenure of 22nd Law Commission up to August 31, 2024. 

The composition of the Commission would remain the same, it added.

The Law Commission consists of one full-time Chairperson; four full-time Members (including Member-Secretary); Secretary, Department of Legal Affairs as ex-officio Member; Secretary, Legislative Department as ex officio Member; and not more than five part-time Members.

The release said during its extended term, the Law Commission would continue to discharge its existing responsibility, as bestowed upon it by order dated February 21, 2020.

The Commission would identify laws, which were no longer relevant and recommend for the repeal of obsolete and unnecessary enactments. 

It would suggest enactment of new legislation as may be necessary to implement the Directive Principles and attain the objectives set out in the Preamble of the Constitution.

The Commission was required to consider and convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through the Ministry of Law & Justice (Department of Legal Affairs), it added.

The release said the Commission would be required to consider the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law & Justice (Department of Legal Affairs).

The Law Commission would prepare and submit to the Central Government, from time to time, reports on all issues, matters, studies and research undertaken by it and recommending such reports for effective measures to be taken by the Union or any State.

It was further required to perform such other functions as may be assigned to it by the Central Government from time to time, added the release.

The ordinance issued by the Government of India for extending the tenure of the Director,Central Bureau of Investigation Subodh Kumar Jaiswal,has been challenged before the Bombay High Court.

The former IPS officer Rajendrakumar Trivedi has file a plea in this regard stating that since the CBI director’s tenure is expiring only in May 2023, there is no need for the government to create a ordinance for the same.

 The making of ordinances should not be treated as a regular law making process as it should only be used under the exceptional circumstances.

The plea said that the promulgation of ordinance of 2021 is a classic case of impermissible legislative overruling and thereby violative of Article 14 and the doctrine of rule of law.

It was also pointed out that Central government chose to promulgate an ordinance despite the fact that winter session was starting in November 2021.

On Friday,when the matter was up for hearing and discussion ,the Additional Solicitor General Anil Singh asked the court for some more time for filing the response.

A bench comprising of Justice SV Gangapurwala and Justice SG Dige have given the date for November 22 for posting the case.

The challenge in the case was that the current Head does not have the experience in investigation of anti-corruption case and has integrity issues.

However,in an affidavit filed by the Ministry of Personnel & Public it is stated that Jaiswal possess enough experience dealing with anti-corruption cases and has no pending complaint or court case against him.

The CBI director has also mentioned that there is no other reason than the vengeance and malafide intention him

The Supreme Court will hear on November 11, a petition filed by the Central government, seeking modification of its previous order that restrained the government from extending the tenure of Enforcement Directorate head Sanjay Kumar Mishra after November, 2021.

The Apex court had last year ruled against giving any more extension to the current ED Director, Sanjay Kumar Mishra.

The Court had said that although the Central Government has powers to make retrospective  changes in the appointment of ED Director but it only be done in the rarest of rare cases.

The court said that although we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases.

The Court also said that the extension should only be given in cases where an ongoing investigations is in place, that also after reasons are recorded by the Committee constituted under Section 25 (a) of the Central Vigilance Commission Act.

In regards to Mishra’s tenure, the Court had affirmed the retrospective revisions to Mishra’s appointment order, increasing his term from two to three years.

The Court has clearly said that there can now be no further extensions to be granted.

Last year after the Supreme Court decision last year, the Central government amended the Central Vigilance Commission empowering itself to extend the tenure of the ED Director up to five years. 

The Supreme Court has received close to 8 petitions before the top court which challenge this.

The Centre then chose to move the present plea for modification of the court verdict. 

Sanjay Kumar Mishra was first appointed as the ED Director in November 2018 for a period of two years, which expired in November 2020. In May 2020, he had reached the retirement age of 60.

On November 13, 2020, the Central Government issued an office order stating that the President had modified the 2018 order to the effect that a time of ‘two years’ was changed to a period of ‘three years.’ This was challenged at the Supreme Court by the NGO Common Cause.

The Central Government has extended the tenure of Attorney General K.K. Venugopal for one more year. He was appointed Attorney General of India on July 1, 2017, for three years which was ended last year and the Government has extended it till June 30, 2021. Now it has been extended till June 30, 2022. 

Kottayan Katankot Venugopal (born 6 September 1931) was born in Kanhangad, a town in the erstwhile South Canara district of Madras Presidency of British India (present-day Kerala, India), and grew up in Mangalore. Venugopal did his B.Sc in Physics from the prestigious Madras Christian College, Chennai and law from Raja Lakhamgouda Law College, Belgaum. Venugopal has also studied at St. Aloysius College, Mangaluru.

His father, M. K. Nambiar, was a barrister. He had a traditional arranged marriage and is the father of three children: 1 daughter and 2 sons. He is a keen collector of antiquarian books and has a very fine collection of old books.

Venugopal served as President of the Union Internationale des Avocats (UIA – International Association of Lawyers) from 1996 to 1997.

Venugopal has appeared in many high-profile cases. Most significantly, he was appointed by the Royal Government of Bhutan to serve as the Constitutional adviser for drafting of the Constitution of Bhutan. On 30 June 2017, he was appointed as the Attorney General of India under the leadership of Prime Minister Narendra Modi. The 88-year-old succeeded Mukul Rohatgi, who stepped down after the first term. Venugopal held the office of Additional Solicitor General in Morarji Desai’s Government. He has appeared in a variety of cases in the last 50 years. Venugopal was appointed as amicuscuriae to assist the Supreme Court in the high profile 2G spectrum case.

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He also appeared for the BJP leader L. K. Advani in the Demolition of the Babri Masjid case.

In 2015, he was conferred Padma Vibhushan award by the Government of India. This is the second-highest civilian honour in India. In 2002, he was awarded Padma Bhushan, the third-highest civilian honour.

Venugopal is one of the main advocates for judicial reforms in India. He is against the creation of regional benches of the Supreme Court of India. Instead, he recommends that Courts of Appeal be established in the four regions of the country, who finally decide on appeals from the High Court judgments in all cases other than cases of national importance which affect the whole country, disputes between States or between States and the Centre, Presidential references and substantial questions of law relating to interpretation of the Constitution. This will relieve the burden on Supreme Court.