What is the news?
Justice Uday Umesh Lalit is going to be the next Chief Justice of India as his predecessor Justice NV Ramana recommended his name for the successor. Justice Ramana is going to retire on 26th August. CJI personally handed over a copy of his letter of recommendation dated 03.08.2022 to Justice U.U. Lalit in the morning on Thursday. As the retirement age of a Supreme Court Judge is 65 years. Hence, CJI U.U. Lalit would hold the office for a period of 74 days only as he would retire on 8th November by completing 65 years of age. After U.U. Lalit Justice DY Chandrachud would be the next CJI.
How is CJI appointed?
There is no information in the Constitution of India regarding the procedure for the appointment of CJI. However, Article 124(1) states that “There shall be a Supreme Court of India consisting of a CJI”.
Clause (2) of Article 124 states that CJI and the Supreme Court Judges are appointed by the President of India. Since there’s no provision regarding the procedure for the appointment of CJI, hence, the procedure to appoint him is totally based on convention.
What’s the convention?
The senior-most judge in the Supreme Court is appointed as the CJI. The recommendations are forwarded by the Union Law minister to the Prime Minister who in turn, advises the President of India. In the case of the same seniority, factors like experience in the High Court, nomination from the bar, and who takes the oath first are taken into consideration for the appointment of the CJI.
For example, in August 2017, Justice Dipak Misra and Justice Jasti Chelameshwar joined the Supreme Court on the same date. Justice Misra was appointed as the CJI despite being 4 months younger than Chelameshwar. Since, Chelameshwar took oath after Misra hence, the latter became the senior to the former.
As there’s no Constitutional provision, hence we follow a memorandum of procedure to appoint CJI.
What’s the memorandum of the procedure?
According to the Memorandum of Procedure, the senior most judge of the Supreme Court is appointed as the CJI. Union Minister of Law and company affairs seek the recommendation of the outgoing CJI for the appointment of the successor. If the outgoing CJI doesn’t find the senior most judge fit to hold the office then he can consult the collegium. After the receipt of the recommendation of the CJI, the Union Minister of Law, Justice & Company Affairs will put up the recommendation to the PM who will advise the President for the appointment of the next CJI. However, Memorandum of Procedure doesn’t mention the situation when the government disagrees with the recommendation of the outgoing CJI.
Has the convention always been followed?
The convention has always been followed since the establishment of the Supreme Court except in the 1970s when Justice A.N. Ray and M.H. Beg became the CJIs.
When Justice A.N. Ray was appointed as the CJI in 1973, despite being 4th in the seniority in the Supreme Court after J.M. Shelat, KC Hedges & AN Groves. The involvement of the 3 judges in the Kesavananda Bharati case of 1973 held that the Parliament can’t make amendments to the Constitution which disturbs the basic feature of the Constitution.
Justice M.H. Beg was appointed as the CJI in 1977 despite H.R. Khanna being the senior judge of the Supreme Court. H.R. Khanna had said in the famous ADM Jabalpur case that he didn’t agree with the government’s stance that the detention of persons during an emergency can’t be questioned, even if mala fide & without the authority of law, according to moneycontrol report.