The Chief Justice of India has made certain observations on the Constitution and Constitution makers that are, to say the least, rather disquieting.
Judges, unlike others, cannot afford to be too loquacious while in office and convention decrees that they shall not say or do anything in public that may lend itself to a partisan interpretation. Not that the Chief Justice of India is not entitled to his opinion on the retirement age of the judges. He is also entitled to express his opinion, but in commenting on the retirement age of judges he appears to have overstepped the bounds of judicious restraint.
His office endows him with a unique position as defender of the Constitution publicly casting aspersions on the wisdom of the Constitution makers and further criticising some of the provisions of the Constitution cannot be entirely edifying. Shri Sinha should have reserved his comment to a more appropriate occasion for if the Chief Justice of India is allowed to criticise the Constitution publicly while still in office it will be taking the principle of free speech to an insufferable length. While everyone knows that it is not the intention of the Chief Justice to decry the Constitution, it must be said that his recent remarks are not the best example of judicial wisdom.
As to the question of retirement age itself, it has been gone into thoroughly by the Law Commission and, for various reasons, the Commission came to the conclusion that in the circumstances obtaining in India it was not desirable to extend the retirement age beyond 65. It did recommend, however, that the retirement age should be uniform for High Court and Supreme Court judges.
This recommendation has not found acceptance with the Government for some obscure reason. It may be that many judges are at the peak of their abilities at the time of retirement. But it is doubtful if this can be upheld as a general rule. What is important is to maintain certain continuity and for this purpose it is essential to work out a system which will enable a Chief Justice to hold office for an adequate period of time.
February 4, 1961
