In this edit piece in the Times of India (September 29, 2010) I argued that the Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 (available here) deserves praise and criticism. It deserves praise because it seeks to do away with unnecessary hierarchy – the 3 year difference in the age of retirement between High Court and Supreme Court judges (SC judges retire at 65, HC judges at 62). However, it deserves criticism because, given the present policy of appointing predominantly senior judges, the 3 year age gap guarantees that Supreme Court judges will serve at least 3 years in office, since the “oldest” new Supreme Court nominee would be 61 years, 11 months and 29 days old: with 3 years and a day until retirement. If the age of retirement for High Court judges is extended to 65, then will the “oldest” Supreme Court nominee be 64 years, 11 months and 13 days old? (a risk, considering that we’ve had a Chief Justice with a 17 day term)
I wanted to clarify here that Supreme Court judges can also be appointed from amongst retired High Court judges (much in the same way as “distinguished jurists” can be appointed to the court). So a 64 year old retired High Court judge can also be appointed to the SC. However, in the last 25 years, this has hardly ever been done (I believe that since August 1985, Justices Saikia and Fathima Beevi were the only such examples, although Justices Ojha, Paripoornan and Balasubramanyan came ominously close to retirement). Justice Beevi also had one of the shortest natural SC tenures in office in the last 25 years.
So the question that I wanted to ask is: how does one ensure parity of treatment between constitutional court judges, and at the same time ensure adequate terms or tenures in office?