Name your successor, Govt tells CJI UU Lalit — how is India’s top judge chosen?

Why has the Law Minister written to the CJI?

The government asking for CJI Lalit’s recommendation on his successor sets the ball rolling on the process of appointment of India’s next CJI. The Memorandum of Procedure (MoP) that governs the appointment of members of the higher judiciary says that the “Union Minister of Law, Justice…would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India”.

Although the MoP mentions an “appropriate time”, the process is by convention begun a month before the date of retirement of the incumbent CJI.

What happens after the CJI sends in his recommendation?

As per the process laid down in the MoP, “after receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice…will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment”.

Article 124(1) of the Constitution says that “there shall be a Supreme Court of India consisting of a Chief Justice of India…and…other Judges”; Article 124(2) lays down that “every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal…”.

On what basis does a Chief Justice of India recommend his successor?

The MoP says that the “appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office”.

Even before the MoP was agreed upon, the seniormost judge of the Supreme Court after the CJI (in terms of the years served) was by convention elevated to the top post. This convention was famously discarded by former Prime Minister Indira Gandhi, whose government recommended the appointment of Justice A N Ray as CJI in 1973 superseding three more senior judges, Justices J M Shelat, K S Hegde, and A N Grover.

Justice Ray was considered more favourably disposed towards Indira’s regime than the other judges. The supersession was announced the day after the Supreme Court pronounced the landmark ‘Kesavananda Bharati vs State of Kerala’ order, which laid down the “basic structure” doctrine. Justice Ray was part of the minority in the 7-6 judgment of the 13-judge Bench.

Subsequently, in January 1977, Indira’s government superseded Justice H R Khanna by appointing Justice M H Beg as CJI. Justice Khanna had been the lone dissenter in the ‘ADM Jabalpur vs Shiv Kant Shukla’ order, in which the majority comprising Justices A N Ray, P N Bhagwati, Y V Chandrachud, and M H Beg agreed with the government that fundamental rights including the right to life and liberty stood abrogated during a period of national Emergency.

What is the Memorandum of Procedure (MoP)?

The MoP is the playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document — because the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.

The MoP has evolved as the standard based on three decisions of the Supreme Court, known as the First Judges Case (1981), Second Judges Case (1993) and the Third Judges Case (1998). These three judgments form the basis of a peer selection process for the appointment of judges.

The MoP was first drawn up in 1999. It was re-negotiated in 2016 following the Supreme Court’s decision to strike down, in 2015, the constitutional amendment that brought in the National Judicial Appointments Commission (NJAC) that sought to change the system of appointments and give the government a foot in the door.

While the government and the SC continue to disagree on a few clauses, the rest of the MoP is generally agreed upon by both sides.