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?
Abhninav, I enjoyed your article, however there is a systemic problem with this piecemeal amendment approach.
There is a crisis of faith in the judicial appointments process, there are a large number of seats left unfilled and we have a terrible judges to people ratio (which should require an expansion of the judiciary). Establishing age parity between constitutional courts seems to be quibbling.
The court's reliance on seniority for succeeding to the position of CJI (though not for CJ's of High Courts) is an attempt to find avoid executive interference. However, there must be more creative ways to ensure judicial independence while ensuring more sustained leadership on the court. Nick Robinson's recent work points to the pivotal role the CJI plays.
Re, Fatima Beevi, Leila Seth's autobiography has a great (with biases she expressly states) accounts of Fatima Beevi's appointment. Fatima Beevi's appointment had much to do with Rajiv Gandhi's hamhanded efforts to reverse Shahbano through the Protection Of Muslim Women's Rights of Divorce Bill, which he then tried to balance by appointing a Muslim woman to the Supreme Court. Though this was before the Third judges case, the senior judges of the court were apparently not thrilled with the appointment. Justice Beevi never got to be senior judge of any bench that she sat on.