ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

Abhinav ChandrachudSubscribe to Abhinav Chandrachud

The Need to Have a Uniform Retirement Age for Judges

The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 seeks to increase the age of retirement of high court judges to 65. This article presents the historical perspective that led to the "retirement age-gap" between the Supreme Court and high court judges.

Supreme Court's Seniority Norm

Given that the Chief Justice of India composes panels and assigns cases to judges, unlike in systems where cases are randomly assigned to avoid bias or where apex constitutional courts sit in plenary sessions, the question of how the CJI is appointed is crucial. This article seeks to answer this question by empirically investigating whether the seniority norm existed prior to the establishment of the Supreme Court of India - specifically, in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, and in the Federal Court of India.

Inconsistent Death Sentencing in India

The murder of Graham Staines and his two minor sons was no less "brutal" or "barbaric" and no less of a "slur on the nation" than an honour killing. In both, the murderer sought to interfere with the fundamental constitutional rights of his victims. Yet, the Supreme Court advocated the death penalty in the honour killing case but only life imprisonment in the Staines case. There are strong moral reasons for abolishing the death penalty altogether. However, as long as it continues to exist on the statute books, it must be applied in a constitutionally consistent manner, an approach which must accord equal status to equal rights.

Regional Representation on the Supreme Court

If seats on the Supreme Court are roughly allocated on the basis of some regional formula, then any deviation from the constitutionally designed scheme of representation of the states in Parliament must be supported by clearly defined and publicly disclosed reasons.

An Empirical Study of the Supreme Court's Composition

There are hardly any data-based studies that tell us who Indian Supreme Court judges are, or where they come from. A study on the composition of the Supreme Court between July 1985 and May 2010 reveals continuity with little change, compared to information collated in the late 1960s. So even if variations emerge in the age at which justices have been appointed to the Supreme Court or in the manner in which some states have been allocated "seats" or in the number of justices who have studied abroad, very few women have become Supreme Court judges.

The Insulation of India's Constitutional Judiciary

The Indian judiciary is insulated from vibrant checks and balances. Its "democratic" insulation arises from its use of contempt law to restrict criticism, its permissive view of libellous speech directed against "other" public officials, and, controversially, the use of English as the official language of the courts. Its "political" insulation arises from its ability to determine its own composition, and the inability of the political establishment to effectively remove allegedly tainted members of the judiciary. Both these forms of insulation embolden the judiciary on the one hand, while directly and indirectly restricting participation on the other, and further threaten to exacerbate the severe problems of judicial administration, delay and corruption in India.
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