The age factor

The appointment of three new judges to the Supreme Court reopens the debate on the need to appoint judges when they are younger.

A FEW weeks ago, the Supreme Court of India's collegium, consisting of the Chief Justice and four most senior judges, cleared the names of three High Court judges for appointment to the Supreme Court. Once the collegium's binding recommendation was accepted by the President, the new judges, Justices S.J. Mukhopadhaya, Ranjana Desai and J.S. Khehar, were sworn in to the court on September 13. This new slate of appointments will be worth noting for several reasons. Not insignificantly, this is the first set of Supreme Court appointments made by the present Chief Justice of India, Justice S.H. Kapadia, since he took over the office from Justice K.G. Balakrishnan in May 2010. One of the new judges is a woman only the fifth woman among 196 judges appointed to the Supreme Court in its history spanning over six decades, and this is the first time two women judges will serve on the Supreme Court at the same time. The new appointments offer a telling glimpse into the trend of Supreme Court appointments during the last decade.

A total of 10 judges retire from the Supreme Court during Justice Kapadia's term, including seven this year. (Justices B. Sudershan Reddy, V.S. Sirpurkar and H.S. Bedi have already retired, and the others to retire, in the order of retirement, are Justices Mukundakam Sharma, Markandey Katju, J.M. Panchal and R.V. Raveendran. Justices Cyriac Joseph, A.K. Ganguly, and Deepak Verma, in that order, will retire next year during Justice Kapadia's term). This is the first time seven judges retire from the court in one year. In 2000, during Chief Justice A.S. Anand's term, six judges retired and, one, Justice M. Srinivasan, passed away, creating seven vacancies that year. The vacancies this year also occur against the backdrop of a larger debate concerning many vacancies in High Courts.

But what does the appointment of the three new judges to the Supreme Court say about the candidates typically selected to the highest constitutional court of India? For one, the three judges are, on average, quite old. Two of them, S.J. Mukhopadhaya and Ranjana Desai, are over 61 years old. The retirement age of High Court judges is 62, and both these judges had less than a year left to retire from their respective High Courts. Since Supreme Court judges retire at the age of 65, both will serve terms of less than four years in the Supreme Court. Is this adequate? Forget for a moment that judges on the Supreme Court of the United States serve in office for life, and forget that judges of the South African constitutional court serve fixed non-renewable 15-year terms, but consider that in India most judges of High Courts serve at least 10-15 years in office, if not more.

For a constitutional court of the stature of the Indian Supreme Court to retain its coherence as an institution, to maintain consistency and predictability in the articulation and application of constitutional norms, it is essential that its judges be given more satisfactory tenures. That is not to say that judges of repute and learning such as Justices Mukhopadhaya and Ranjana Desai should not be appointed to the court: the only contention is that they should have been appointed earlier, or once appointed they should be given fixed but longer terms.

At present, the average age of the three new judges to be appointed is over 60.7 years. In fact, of the 38 Chief Justices of India, only three Justices Harilal Kania, B.K. Mukherjea, and M.N. Venkatachaliah made appointments of judges who had an average age higher than this (Table 1 illustrates that the average age of appointment to the court during the tenure of these three Chief Justices of India was over 61 years of age).

Interestingly, this is in keeping with the trend of appointment of older judges, on average, to the Supreme Court.

Youngest judges

The data tell us that the youngest Supreme Court judges in the country's history were appointed in the 1970s. One of the finest judges the Supreme Court has ever seen, Justice P.N. Bhagwati, was only 51 years old when he was appointed to it. The fact that he served close to 14 years in office, a term longer than his tenure as a High Court judge in Gujarat, perhaps had something to do with the stature he attained in the court and the status he achieved as a judge. But even before him, many judges in the 1950s were appointed to the court at age 55 or younger (B.P. Sinha, Syed Jaffer Imam, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, M. Hidayatullah, and J.C. Shah). Some of these names are amongst the most well known in India's legal circles.

As the court's most prolific dissenter, Justice K. Subba Rao went on to herald the demise of the Gopalan era in the court. According to one estimate, he wrote as many as 53 dissenting opinions, that is, opinions in which he disagreed with the majority view. In A.K. Gopalan vs Madras, AIR 1950 SC 27, the Supreme Court had held that the constitutionality of a law would have to be tested on the basis of the object of the law itself and not by the incidental effect the law would have on other fundamental freedoms. In a series of cases decided in the 1960s ( Kochuni vs Madras, AIR 1960 SC 1080; Kharak Singh vs U.P., AIR 1963 SC 1295; and Maharashtra vs Prabhakar, AIR 1966 SC 424), Justice Subba Rao expressed considerable doubt over the court's object approach to constitutional analysis, an approach which was soon replaced by the effects test in R.C. Cooper vs Union, (1970) 1 SCC 248. Of a similar stature, opinions written by Justices Gajendragadkar and Hidayatullah still elicit adulation in classrooms and admiration in courtrooms. It is not implausible to posit that their age and lengthy terms in office gave them an edge an occasion to define themselves on the court, and then to define the jurisprudence and docket of the court itself.

In the 1960s, Justice S.M. Sikri was the only judge appointed to the court at age 55, but as the Chief Justice of India he went on to preside over the most significant case in India's constitutional history, where, as part of the majority, he and six other judges held that our Constitution had a basic structure, one which could not be altered or destroyed by constitutional amendment. In the 1970s, too, several judges were appointed to the court at age 55 or younger (Y.V. Chandrachud, P.N. Bhagwati, M. Fazl Ali, R.S. Pathak, O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah). Many of these judges left a lasting mark on the jurisprudence of the court.

However, starting with the 1980s, in 30 years, only four judges have been appointed to the Supreme Court at age 55 or younger: Sabyasachi Mukherjee, A.S. Anand, S.P. Bharucha and K.G. Balakrishnan, each of whom went on to become Chief Justice of India. In fact, the data tell us that the oldest judges were appointed to the Supreme Court in the last two decades, that is, between 1990 and 2009. The average age of appointment during 2000-2009 was 59.7 years and during 1990-1999 it was 59.8 years higher than the average of any previous decade. Justice Kapadia's three appointments tend to fit this paradigm. In fact, one wonders if appointees to the Supreme Court today would not have been even older had the retirement age in High Courts been 65. If this were so the court's collegium would have had even older High Court judges to choose from, judges who would potentially go on to serve only a few months in the Supreme Court.

That is not to say older judges cannot mould the jurisprudence of the court in a comparatively shorter but influential cameo innings. Chief Justice M. Patanjali Sastri, one of the first members of the court, was 61 years old when the Supreme Court of India came into being. Similarly, appointed at the relatively late age of 59, Justices Vivian Bose and H.R. Khanna each indelibly altered the trajectory of the court's jurisprudence. In the famous Anwar Ali Sarkar case, Justice Bose was perhaps the first judge to use the phrase reasonable, just and fair, prescient words which would resonate in the court's opinions decades later in the Maneka Gandhi case (1978) and beyond. Justice Khanna's dissent in the habeas corpus case served as a moral compass for a court that tried desperately to atone for the wrongs it committed during the Emergency. Imagine a court where the Sastris, the Boses and the Khannas, or for that matter the Mukhopadhayas and the Desais serve not three to six years in office but 10 to 15 years how much more beneficial that would be for the court and for our system.

Next, of the three new judges being appointed to the Supreme Court, two (Mukhopadhaya and Khehar) were High Court Chief Justices. There is nothing surprising about this either. In the early years, at least half the judges of the Supreme Court were typically amongst those who were not High Court Chief Justices. This began to show signs of change starting with the end of Justice A.M. Ahmadi's tenure as Chief Justice of India (1994-1997) when an unprecedented 17 sitting Supreme Court judges (or 73 per cent of the court) were former High Court Chief Justices. This trend reached its zenith by the end of Justice R.C. Lahoti's term as Chief Justice (2004-05), when an overwhelming 20 sitting Supreme Court judges (or 95 per cent of the court) were former High Court Chief Justices.

For this reason, the fact that two of Chief Justice Kapadia's new appointees are High Court Chief Justices is not surprising. (In fact, Justice Khehar served as Chief Justice of not one but two High Courts in succession (Uttarakhand and then Karnataka), a trend which has increasingly been seen in the court starting with the 1990s. The overwhelming dominance of High Court Chief Justices in the Supreme Court adds a few years to the average age of the court after all, only the oldest judges in the country, those who have served the longest terms in the High Courts and risen to positions of seniority, are transferred to other High Courts as Chief Justices.

Neither, perhaps, is it surprising that the only Kapadia appointment to the court not to have been a High Court Chief Justice, Justice Ranjana Desai, is a woman. Only two (Sujata Manohar and Gyan Sudha Misra) of the four women who were appointed to the court before this, previously served as the Chief Justice of a High Court. Justices M. Fathima Beevi and Ruma Pal were not, and neither is Justice Ranjana Desai, although, to be fair, she was the most senior associate justice in the Bombay High Court.

What do Chief Justice Kapadia's appointments tell us about the Supreme Court itself? The appointment of the fifth woman justice of the court must be welcomed. Now there is only one other constituency that has a smaller claim to the court than women bar judges. Since 1950, only four judges have been appointed to the Supreme Court directly from the bar, that is, without having served as a judge in a High Court. Starting with the 1960s, one such judge was appointed in every decade S.M. Sikri in the 1960s, S. Chandra Roy in the 1970s, Kuldip Singh in the 1980s, and Santosh Hegde in the 1990s.

The 2000-09 decade was the only one since the 1950s when a judge was not appointed to the Supreme Court directly from the bar. The appointment of Justice Ranjana Desai to the court now means that women finally have a stronger claim to the court than the court's own bar. However, the fact remains that where S.M. Sikri, a bar judge, served as the Chief Justice of India (during the historic Basic Structure hearings, no less), not a single woman has become the Chief Justice of India.

Despite these statistical inferences, the three new selections for appointment to the Supreme Court must be welcomed, even as we look to see how the Chief Justice of India populates the remaining six vacancies during his tenure.

Abhinav Chandrachud is the author of Due Process of Law (EBC 2011), and, starting this Fall, a research fellow at Stanford Law School.