Knowledge Nugget | Justice Surya Kant takes oath as 53rd CJI. How is CJI appointed? A must-read for UPSC exam

Why in the news?

Justice Surya Kant took oath as the 53rd Chief Justice of India on November 24 with the retirement of incumbent CJI B R Gavai and will remain in office till February 9, 2027. Notably, Justice Kant’s tenure will be relatively long, offering his bench an extended opportunity to adjudicate several high-profile constitutional and social cases. In this context, let’s know how India’s top judge is chosen and what the important constitutional articles on the appointment of judges in the higher judiciary are.

Key Takeaways:

1. Article 124(1) of the Constitution of India says that “there shall be a Supreme Court of India consisting of a Chief Justice of India…and…other Judges”. 

2. Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

3. The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed. But the Constitution does not lay down any process for making these appointments.

4. By convention, the seniormost judge of the SC (based on years of experience as a judge in the apex court) becomes the CJI. This process has now been put down in the ‘Memorandum of Procedure for the appointment of Supreme Court Judges’ (henceforth, referred to as the MoP).

5. The MoP says that the “appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office”. Even before the MoP was agreed upon in 1999, the seniormost judge of the Supreme Court after the CJI was by convention elevated to the top post.

6. According to the MOP, the appointment process begins when “The Union Minister of Law, Justice and Company Affairs 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”. By convention, the “appropriate time” for the process to begin is a month before the date of retirement of the incumbent CJI. Thus, we see that Chief Justice of India B R Gavai on October 27th wrote to the Union government recommending Justice Surya Kant as his successor.

7. 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”. Though the final word on appointing the next CJI technically lies with the Centre, by convention the Centre tends to appoint whoever the presiding CJI recommends as his successor.

Three Judges Cases

Collegium is the system of appointment of Judges of the higher judiciary, which evolved through a series of Supreme Court judgments known as “Judges Cases.” Let’s look at the Three Judges Cases that led to the formation of the collegium system.

📍First judges case: In ‘SP Gupta Vs Union of India’, 1981, a seven-judge Bench gave the Executive the last word on the appointment of judges. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.

— The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.

— The judgment in the First Judges Case tilted the balance of power in appointments of judges of High Courts in favour of the executive. This situation prevailed for the next 12 years.

📍Second judges case: In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.  It also said that the CJI would make decisions along with two senior-most judges of the court, who would form the collegium.

📍Third judges case: In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.

— In response, the Supreme Court laid down that the recommendation should be made by the CJI and his four senior most colleagues — instead of two, as laid down by the verdict in the Second Judges Case. It also held that Supreme Court judges who hailed from the High Court from which the proposed name came should also be consulted.

— The issue of the appointment of judges through the Collegium has often been criticised for being non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.

BEYOND THE NUGGET: National Judicial Appointments Commission (NJAC) Act

1. The Justice M N Venkatachaliah Commission, appointed by Prime Minister Atal Bihari Vajpayee in 2000, recommended the creation of a National Judicial Appointments Commission to replace the collegium.

2. In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. These two laws provided for an independent commission to appoint judges to the SC and High Courts, replacing the collegium system.

3. The NJAC was to comprise the Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.

4. The laws were repealed in October 2015 after the Supreme Court struck them down.

Post Read Question

With reference to the appointment of the Chief Justice of India consider the following statements:

1. According to the ‘Memorandum of Procedure for the appointment of Supreme Court Judges (MoP)’ the appointment process begins when “The Union Minister of Law, Justice and Company Affairs 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”.

2. As per the process laid down in the MoP, the presiding CJI advises the President in the matter of appointment of the next CJI.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

(Sources: Key cases before new Supreme Court Chief Justice Surya Kant, Name your successor, Govt tells CJI UU Lalit — how is India’s top judge chosen?, CJI recommends Justice Surya Kant as successor)

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