By Lokendra Malik
The recommendation by the outgoing chief justice of India (CJI) will be forwarded to the prime minister who will advise the president of India—the appointing authority of the Supreme Court judges—to appoint Justice UU Lalit to the office of the chief justice of India. Justice Lalit will have a short tenure of just 74 days as the CJI.
Several constitutional pundits, lawyers and social thinkers believe that the CJI should have a reasonably long tenure and the central government should increase the retirement age of the Supreme Court and High Court judges. But, the government has so far given no indication that it is considering any such suggestion.
The office of the CJI holds a very important position in our constitutional structure. The CJI is the administrative head of the Supreme Court and the Master of the Roster. He constitutes the benches and allocates cases to the judges for adjudication. The CJI is also the head of the Supreme Court collegium which selects the judges of the Supreme Court and High Courts.
The recommendations made by the Supreme Court collegium are binding on the president, who generally acts on the aid and advice of the council of ministers, headed by the prime minister. However, in making the judicial appointments, the president is not bound by the advice of the cabinet and acts as per the recommendation of the collegium headed by the CJI.
On the judicial side, the CJI is first among the equals and heads a bench which decides cases of different natures. The CJI is also considered the leader of the judicial branch of the state.
Ever since the establishment of the Supreme Court, the central government appoints the CJI based on the seniority convention. However, this convention was breached two times (in 1973 and 1977) when senior judges were bypassed and pliable junior judges were appointed to the office of the CJI by the Indira Gandhi government which practiced and promoted the culture of committed judiciary.
In 1973, the Indira Gandhi government had bypassed three senior judges, namely Justices Shelat, Grover and Hegde, and appointed Justice AN Ray, who had a reputation of being a committed judge, as the CJI. He hardly decided any case against the government. The constitutional pundits believe that the then Prime Minister Indira Gandhi was unhappy with the three senior judges because of their several judgments against the government, including the famous Kesavananda Bharati case which had imposed several limitations on the law-making power of Parliament and Constitution-amendment process prescribed under Article 368 of the Constitution.
Second time, her government bypassed Justice HR Khanna in 1977 because of his dissenting judgment delivered in the ADM Jabalpur case and appointed Justice MH Beg to the office of the CJI. Like Justice Ray, Justice Beg was also considered a darling of the government because of his pro-government approach.
Fortunately, after 1977, no judicial supersession took place in the country and the central government followed the seniority convention strictly in appointing the CJI. However, some Janata Party leaders had demanded the supersession of Justice YV Chandrachud because of his judgment in the ADM Jabalpur case, but then Union Law Minister Shanti Bhushan and Prime Minister Morarji Desai did not agree with their party people and cleared the way for Justice Chandrachud to the office of the CJI.
In his memoirs titled “Courting Destiny”, at page no. 188, Shanti Bhushan recalls that episode in these words: “Justice Beg was due to retire on 20 February 1978 and the government had to reconsider whom to appoint in his place. After the furore raised when A. N. Ray was appointed as Chief Justice by superseding three senior judges of the Supreme Court, a consensus had emerged that the government should not have the right to select the Chief Justice since it was likely to affect the independence of the judiciary; instead, whoever was the seniormost judge at the time a vacancy arose should be appointed. The seniormost judge after Justice Beg was Justice Chandrachud.
“However, since Justice Chandrachud and Justice Bhagwati had been party to the infamous decision of the Supreme Court in the case of ADM Jabalpur, in which they had laid down that there was no right to life or liberty during an emergency, there was very strong public opinion in the country against the elevation of Justice Chandrachud…Since the appointment of judges pertained to my ministry, I received a personal letter on this subject from Jayaprakash Narayan who was then in Jaslok Hospital, Bombay. He wrote to me that as Justice Chandrachud had let down the whole nation during the Emergency by being a party to the infamous decision in such a vital question as to right to life and liberty, he was of the view that the judge should not be elevated to the position of the Chief Justice of India.
“I had immense respect for Jayaprakash Narayan. I replied immediately that since the subject was very sensitive, and the decision had many dimensions to it, I would like to come to Bombay and discuss the issue personally with him. So I went to Bombay, met JP in the hospital and had a lengthy discussion with him on this issue…
“I was strongly of the view that there were two reasons why we must not fall to the temptation of appointing a Chief Justice by superseding judges. One, having very strongly advocated the principle of elevation to the office of Chief Justice only by seniority, we should not be seen as violating that principle. Two, even if we appointed a person from outside the Supreme Court, at least some sections of the public would see it as the Janata Party government hand-picking a person for the highest judicial office. This fact in itself would undermine the moral authority of the Chief Justice and whenever he had to take a position on a controversial matter-particularly a politically sensitive matter-someone would point a finger if it happened to be in favour of the government.
“On the whole, I strongly believed that however distasteful it might be for us to appoint Justice Chandrachud, we had to adhere to the principle for which we had campaigned five years ago….I am happy to say that Jayaprakash Narayan saw the validity of my opinion. He agreed that the government should stick to the principle of seniority.
“Having brought him around to my views, I had still to deal with the Janata Party MPs. Most of them had suffered—when they had been jailed for up to nineteen months—on account of the judgment given in the ADM Jabalpur case….
“I sent a note to Prime Minister Morarji Desai recommending the elevation of Justice Chandrachud by drawing his attention to the almost total judicial consensus in the country that the principle of seniority should be followed. The Prime Minister unhesitatingly accepted my advice and Justice Chandrachud was appointed as Chief Justice of India. Since by this time the views of Jayaprakash Narayan were known to the press, no dissenting voices were raised in Parliament.”
Since 1977, the seniority convention has been followed constantly without any breach in the appointment of the CJI. The Law Commission headed by Justice HR Khanna had also recommended to the central government to follow the seniority convention while appointing the CJI.
In 1993, the Supreme Court also approved the seniority convention in the appointment of the CJI. This is what the Court observed regarding this issue: “Apart from the two well-known departures, appointments to the office of the Chief Justice of India have, by convention, been of the seniormost judge of the Supreme Court considered fit to hold the office, and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other judge is to provide for such consultation, if there be any doubt about the fitness of the seniormost judge to hold the office, which alone may permit and justify a departure from the long standing convention. For this reason, no other substantive consultative process is involved. There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”
Given the above, it is obvious that the seniority convention is a safe method to save the judicial branch from executive interference. If the government gets the space to breach this convention, there would be disastrous consequences and the independence of the judiciary will be the compromised. We need a strong judiciary which can protect the people’s rights from the executive excesses and encroachments.
The CJI is a very powerful constitutional authority who plays a significant role in protecting the rule of law, constitutionalism, and judicial independence. Only a strong leader can defend the institution.
Justice Lalit is a great defender of judicial independence. He was elevated to the Supreme Court bench directly in August 2014 during the tenure of then CJI RM. Lodha. After Justice SM Sikri, he will be the second CJI who has directly come from the bar. His short tenure means that, unfortunately, he will face the restrictions of time.
—The writer is an advocate in Supreme Court