Speculation continues to mount in legal circles that Justice Ranjan Gogoi will be superseded when current Chief Justice of India Dipak Misra retires in October 2018, and the position of CJI will pass to one of the other judges further down the pecking order of seniority.
Justice Gogoi was one of the four Supreme Court judges who held an unprecedented press conference in January 2018, raising concerns about the administration of the Supreme Court and the independence of the judiciary. Rumours that his involvement in the press conference had earned the ire of not just CJI Dipak Misra, but the central government as well, had become so prominent, that Union Minister for Law and IT Ravi Shankar Prasad was openly asked about this at a recent 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?
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:
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: