Topics Covered:
- Separation of powers between various organs dispute redressal mechanisms and institutions.
How Supreme Court chooses the Chief Justice of India?
What to study?
For Prelims and mains: CJI- appointment, eligibility, roles and functions, reforms needed.
Context: Chief Justice of India Ranjan Gogoi has recommended Justice Sharad Arvind Bobde as his successor and the 47th Chief Justice of India in keeping with convention and the seniority norm.
How it works?
The Chief Justice of India is traditionally appointed by the outgoing Chief Justice of India on the day of his (or her) retirement.
By convention, the outgoing Chief Justice of India selects the most senior then-sitting Supreme Court judge.
Seniority at the apex court is determined not by age, but by:
- The date a judge was appointed to the Supreme Court.
- If two judges are elevated to the Supreme Court on the same day:
- The one who was sworn in first as a judge would trump another.
- If both were sworn in as judges on the same day, the one with more years of high court service would ‘win’ in the seniority stakes.
- An appointment from the bench would ‘trump’ in seniority an appointee from the bar.
Is it a part of the Constitution?
The Constitution of India does not have any provision for criteria and procedure for appointing the CJI. Article 124(1) of the Indian Constitution says there “shall be a Supreme Court of India consisting of a Chief Justice of India”.
The closest mention is in Article 126, which deals with the appointment of an acting CJI.
In the absence of a constitutional provision, the procedure relies on custom and convention.
What is the procedure?
The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary:
- The procedure is initiated by the Law Minister seeking the recommendation of the outgoing CJI at the ‘appropriate time’, which is near to the date of retirement of the incumbent CJI.
- The CJI sends his recommendation to the Law Ministry; and in the case of any qualms, the CJI can consult the collegium regarding the fitness of an SC judge to be elevated to the post.
- After receiving recommendation from the CJI, the law minister forwards it to the Prime Minister who then advises the President on the same.
- The President administers the oath of office to the new CJI.
Does the government get a say?
Except for the law minister seeking the recommendation from the incumbent CJI, and forwarding it to the Prime Minister, the government has no say in the appointment of the CJI.
Vis-à-vis the appointment of the CJI and the appointment of SC judges, the key difference is that in the former, the government cannot send the recommendation of the CJI (or the collegium) back to them for reconsideration; while in the latter, the government can do so. However, if the collegium reiterates those names, then the government cannot object any further.
Sources: the Hindu.
