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Explained: How the Chief Justice of India is appointed

Justice Lalit will have a relatively short tenure of over three months with his retirement scheduled for November 8. He will be the second CJI to have been appointed directly from the Bar, without serving as a judge of a high court.

Apart from being an Indian citizen, the person must (a) have been for at least five years a Judge of a High Court or of two or more such Courts in succession or (b) have been for at least ten years an advocate of a High Court or of two or more such Courts in succession, or (c) be, in the opinion of the President, a distinguished jurist. (Photo Source: PTI)

Speaking at the farewell of outgoing Chief Justice of India (CJI) NV Ramana, organised by the Supreme Court Bar Association, the new CJI UU Lalit said he “will strive hard to make the process of listing cases as simple as transparent as possible”, and laid out his priorities, such as making sure at least one constitutional bench was functioning throughout the year.

Justice Lalit will have a relatively short tenure of over three months with his retirement scheduled for November 8. He will also only be the second CJI to have been appointed directly from the Bar, without serving as a judge of a high court.

How was it decided that Justice UU Lalit will be Ramana’s successor and appointed the 49th CJI of India? We explain the procedure behind the appointment of India’s highest judicial post, and the debate about its strengths and flaws.

Who can become the Chief Justice of India?

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Apart from being an Indian citizen, the person must (a) have been for at least five years a Judge of a High Court or of two or more such Courts in succession or (b) have been for at least ten years an advocate of a High Court or of two or more such Courts in succession, or (c) be, in the opinion of the President, a distinguished jurist.

Who appoints the CJI?

The Chief Justice of India and the other judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Indian Constitution. It is mentioned in Article 124 that appointment by the President is to be done “after consultation” with judges of the Supreme Court, as the President may “deem necessary”.
Article 217, which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned. Further, the tenure of a CJI is until they attain the age of 65 years, while High Court judges retire at 62 years.

What is the system followed for recommending and appointing judges?

The more than two decades-old collegium system is followed in the appointment of judges, consisting of five seniormost judges of the Supreme Court and the High Courts. The government gets a background inquiry done by the Intelligence Bureau (IB) at times from the names first suggested for appointment by the collegium. While the government can also raise objections, usually the collegium’s will prevails. The term “collegium” is not mentioned in the constitution, which only speaks of consultation by the President.

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Given the ambiguity of the word “consult”, this method of appointment has often been challenged in the courts, leading to cases such as the First Judges Case where it was held that recommendation made by the CJI to the President can be refused for “cogent reasons”. This meant the President or the executive would be in a more influential position in deciding appointments.

With subsequent cases and judgements, this changed. The Supreme Court laid down guidelines for appointments and transfers — leading to the present form of the collegium in which decisions are to be taken by a majority of the five seniormost judges, a result of the ‘Third Judges Case’. And so, in the last few years, the common understanding was that the independence of the judiciary from the executive was to be guarded in matters of appointments.

Usually, the seniormost judge of the court after the chief justice (in terms of the years served) is recommended as the successor. This convention was memorably discarded by former Prime Minister Indira Gandhi, who appointed Justice AN Ray as CJI in 1973 over his seniors for a CJI more favourable to her regime.

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According to the government’s Memorandum of procedure for the appointment of Supreme Court Judges, seniority is to be the norm. It says the Union Minister of Law, Justice and Company Affairs seeks the recommendation of the outgoing Chief Justice of India for the appointment of the next CJI.

After the collegium’s recommendations are finalised and received from the CJI, the Law Minister will put up the recommendation to the Prime Minister who will advise the President on the matter of appointment.

What is the criticism of the collegium system?

The main issue with the collegium system is that it has little transparency. The 230th report of the Law Commission of India submitted in 2009, pointed to the possibility of nepotism prevailing, saying: “Sometimes it appears that this high office (HC Judge) is patronised. A person whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political higher-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed, at least in the same HC.”

An alternative was proposed in form of the National Judicial Appointments Commission, which suggested a body for making appointments, comprising the CJI and two seniormost judges, the law minister, and two “eminent” persons selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha. While the bill introduced for it was passed by the Parliament, it was ultimately struck down by the Supreme Court in 2015. A Memorandum of Procedure was to be drafted for the appointment procedure, said the court at the time.

What is the procedure for removal of CJI?

The constitution states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting”, with the address in the same session presented to the President for removal on one of the two grounds – proved misbehaviour or incapacity.

First published on: 27-08-2022 at 19:57 IST
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