How is the Chief Justice of India Appointed?

Will Justice Ranjan Gogoi become the next Chief Justice of India? Here’s what the law has to say.

(This story was first published on 28 February 2019 and is being republished from The Quint's archives in light of incumbent Chief Justice of India UU Lalit recommending Justice DY Chandrachud for the role of next Chief Justice of India.)

Justice Ranjan Gogoi was sworn in as Chief Justice of India on 3 October 2018, drawing a curtain on the eventful tenure of his predecessor, Justice Dipak Misra.

The appointment of Justice Gogoi as CJI is in line with the convention normally followed for deciding who will take office, despite several months of speculation in legal circles over whether the government would try to supersede him.

Rumours that his involvement in the unprecedented press conference by four senior judges of the Supreme Court in January 2018 had earned the ire of the central government, had become so prominent, that Union Minister for Law and IT Ravi Shankar Prasad was openly asked about this at a press conference.

Prasad’s answer to the question was:

“There was no reason to doubt the intention of the government. There is a convention in place and let CJI forward the name of his successor and then the government would discuss on it.” [sic]

But what is the ‘convention’ in place? What is the importance of the CJI’s recommendation? And what discussions can the government have on it?

Who is Eligible to Become Chief Justice of India?

The Constitution of India includes no details about how the Chief Justice of India is to be appointed. Article 124(1) says that there “shall be a Supreme Court of India consisting of a Chief Justice of India”, but is silent on the criteria or procedure for appointing a CJI. The only provision in the Constitution which mentions anything about the appointment of a CJI is Article 126 — which deals with the appointment of an acting CJI.

In the absence of any Constitutional provision or statute, we have to look to convention and custom to determine who will be the next CJI.

The ‘convention in place’ is a relatively straightforward one — when the current/incumbent CJI retires (all Supreme Court judges retire at the age of 65) the senior-most judge of the apex court among those remaining becomes the CJI.

This is not a question of age, but depends on when a judge was appointed to serve on the Supreme Court. The longer a judge has been part of the Supreme Court, the more senior he or she is.

To illustrate this, imagine that when the next CJI is set to retire, there are two judges – one who is 63 and has been a judge of the apex court for five years; and one who is 62, but has been at the court for six years. Following the seniority convention, the judge who is 62 will be considered the more ‘senior’, and should become the next CJI.

Things can get interesting when two judges are appointed to the Supreme Court on the very same day, as often happens. CJI Dipak Misra, for instance, was sworn-in on the same day as Justice Chelameswar (10 October 2011), and despite being four months younger, Justice Misra became CJI in August 2017.

In such circumstances, the following factors will be used to determine the order of seniority:

1. Which judge was sworn in first — which was used to determine who would be CJI when it came to Justices Misra and Chelameswar, as well as Justices Ruma Pal and YK Sabharwal in 2000;
2. Which judge has had more years of high court service; or
3. If one of the judges was nominated from the Bar directly (like Justices Rohinton Nariman or Indu Malhotra), while the other(s) have previously served as a high court judge, the person with experience as a judge will be given preference.

This convention on appointment of the CJI comes from historical practice, and has been affirmed by the Supreme Court in the Second Judges Case in 1993, in which it was held by the majority that:

(6) 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.

Have There Been any Exceptions to This Convention?

There have been 45 Chief Justices of India (including the incumbent CJI Dipak Misra) since the establishment of the Supreme Court in 1950, and the seniority convention has been followed all but twice in that time. Both these took place in situations where the Executive (in particular PM Indira Gandhi) wished to supersede those who would have been appointed under the seniority convention.

Justice AN Ray

Justice Ray was fourth in terms of seniority when CJI SM Sikri retired on 25 April 1973, behind Justice JM Shelat, KS Hegde and AN Grover, despite which he was appointed as the next CJI.

Just a day before, the three more senior judges had been part of the majority decision in the landmark Kesavananda Bharati case, which had held that Parliament could not make amendments to the Constitution that would alter its “basic structure”. This decision would have tremendous significance in later years, when Mrs Gandhi tried to amend the Constitution during the Emergency.

Justice Ray, however, had been part of the minority which had held that Parliament had untrammelled powers to amend the Constitution — a position that was far more palatable to the government. An attempt to review the Kesavananda Bharati decision during his time as CJI failed, thanks to the argumentation of veteran lawyer Nani Palkhivala.

Justice MH Beg

When CJI Ray retired on 28 January 1977, the senior-most judge as per convention was Justice HR Khanna. Justice Khanna, however, was not loved by Indira Gandhi’s government, having courageously authored the minority judgment in the ADM Jabalpur case.

Dissenting against the judgment of four of his peers, he refused to countenance the government’s argument that the detention of persons during an Emergency could not be questioned, even if mala fide and without authority of law. Though Justice Khanna is remembered with reverence by the Bar now, because of his actions, Justice MH Beg, who was next in line according to the seniority convention, was appointed CJI instead.

What is the Procedure for Appointment of the CJI?

The seniority convention tells us who should become the next CJI, but how this is to be done is laid out in the Memorandum of Procedure (MOP) between the government and judiciary.

The steps to be followed are:

1. The Union of Minister of Law, Justice and Company Affairs will seek the recommendation of the outgoing CJI as to who should be the next CJI. This is to be sought at “the appropriate time”, ie, near to the retirement date of the outgoing CJI.
2. The CJI should recommend the “senior-most judge of the Supreme Court considered fit to hold the office”. However, if there are any doubts as to the fitness of the senior-most judge as per convention, the CJI needs to consult the Collegium to decide if a different judge needs to be recommended.
3. After receipt of the CJI’s recommendation, the law minister will forward the recommendation to the prime minister, who then advises the President as to this recommendation.
4. The President administers the oath of office for the new CJI.

Does the Government Get a Say?

Despite the involvement of the law minister and the prime minister, the government actually gets no say in the appointment of the CJI. This is best illustrated by comparing the provisions of the MOP on appointment of the CJI as against appointment of judges to the Supreme Court.

When it comes to appointing judges to the Supreme Court, the government can send recommendations of the Collegium back to them for reconsideration — and if the Collegium reiterates those names, the government cannot object any further. This process is described in the MOP in detail.

However, no such process exists for the appointment of the CJI, meaning the MOP does not envisage any possibility of the government disagreeing with the recommendation of the CJI.

The absence of governmental authority when it comes to this question was also emphasised in the NJAC case in 2015, when the Supreme Court struck down the attempt to set up a National Judicial Appointments Commission. The NJAC Act and constitutional amendments tried to open the door for Parliament to draft a law on who should be appointed as CJI — which ended up being one of the key reasons why the Court held the whole framework to be unconstitutional.

When Indira Gandhi and her government bypassed the seniority convention in the 1970s, the primacy of the judiciary in such matters was not judicially enshrined. Since then, thanks to the Second and Third Judges Cases (1993 and 1998) and the NJAC case (2015), the judiciary’s role has been clarified, and the government cannot gainsay them.

As a result, the only person who truly gets a say in the appointment of the next CJI is the outgoing CJI. Even they are bound to follow the seniority convention, unless the senior-most judge is not considered fit to hold the office.

It is not entirely clear what fitness means in this context, though during the proceedings of the NJAC case, Attorney General Mukul Rohatgi and the bench opined that this was only a question of physical or mental fitness. If such issues do come up, again, it is not the CJI alone who gets to consider whether a judge is fit or not, but the Collegium of the CJI and the four next senior-most judges.