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Sansad TV: In-Depth- How is the Chief Justice of India appointed?

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Appointment of CJI:

  • 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.

Some highlights:

  • From 1950 to 1973, the practice has been to appoint the seniormost judge of the Supreme Court as the chief justice of India.
  • This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
  • Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
  • This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

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.

Appointment of the CJI and the appointment of SC judges- key difference:

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.

Appointment of Judges:

  • The judges of the Supreme Court are appointed by the president.
  • The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
  • The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
  • The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

Conditions for Removal:

  • Retirement on completion of 65 years.
  • Resignation
  • Impeachment
  • Grounds for removal: proven misbehavior, incapacity