Once appointed to the court, Supreme Court judges in India enjoy security of tenure. They cannot be removed except by a strenuously difficult impeachment process, their tenures cannot be shortened or renewed, and their salaries cannot be altered to their disadvantage. For this reason, the second and third “Judges Cases” arguably did more for the structural independence of the judiciary in the High Courts, than for Supreme Court judges. Between 1973-78, the government tried to tamper with this independence by interfering with the “seniority norm” on the Supreme Court of India and superseding judges. Supersessions were used to punish judges who had decided against the government by overlooking them for promotion to the post of Chief Justice of India. The seniority norm has been obeyed ever since, and is a vital unwritten norm which safeguards the independence of the judiciary.
In a paper published in this week’s issue of the Economic and Political Weekly, I examine the historical origins of the seniority norm, and find that there was only weak evidence of its existence before the creation of the Supreme Court of India. In the 1950s, the successive appointment of six Chief Justices of India by the seniority norm was an aberration that had little historical precedent, and the seniority norm is probably a contemporary development.
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