Appointment of Chief Justice of India (CJI)

In News

• Recently, Justice Dhananjaya Y Chandrachud was appointed as the 50th Chief Justice of India.
  • He will have a relatively longer tenure of two years and is due to retire on November 10, 2024. 

About Article 124

• The Constitution of India does not mention any procedure for appointing the CJI. 
  • Article 124 (1) of the Constitution merely says, “There shall be a Supreme Court of India consisting of a Chief Justice of India.”
• Clause (2) of Article 124 of the Constitution says that every Judge of the Supreme Court shall be appointed by the President. 
  • Thus, in the absence of a constitutional provision, the procedure to appoint CJI relies on convention.

The Convention

• The outgoing CJI recommends his successor a practice, which is strictly based on seniority.
  • Seniority, however, is not defined by age, but by the number of years a judge has been serving in the top court of the country.

The government’s role

• The Central government has no role to play in the appointment of the CJI except for the Union Law Minister seeking the recommendation from the incumbent CJI, before sending it to the Prime Minister. 

Who can become the Chief Justice of India?

• Apart from being an Indian citizen, the person must:
  • Have been for at least five years a Judge of a High Court or of two or more such Courts in succession or
  • Have been for at least ten years an advocate of a High Court or of two or more such Courts in succession, or
  • Be, in the opinion of the President, a distinguished jurist.

Who appoints the CJI?

• The Chief Justice of India and the other judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Indian Constitution.
• Article 217: which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned. 
  • Further, the tenure of a CJI is until they attain the age of 65 years, while High Court judges retire at 62 years.

Removal of CJI

• A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
• With the address in the same session presented to the President for removal on one of the two grounds:
  • Proved misbehaviour or incapacity.

What is the system followed for recommending and appointing judges?

• The more than two decades-old collegium system is followed in the appointment of judges, consisting of five senior most judges of the Supreme Court and the High Courts.
  • The term “collegium” is not mentioned in the constitution, which only speaks of consultation by the President. 
• The government gets a background inquiry done by the Intelligence Bureau (IB) at times from the names first suggested for appointment by the collegium.
• While the government can also raise objections, usually the collegium’s will prevails.
• After the collegium’s recommendations are finalised and received from the CJI, the Law Minister will put up the recommendation to the Prime Minister who will advise the President on the matter of appointment.

Criticism of the collegium system

• The main issue with the collegium system is that it has little transparency.
• The 230th report of the Law Commission of India submitted in 2009, pointed to the possibility of nepotism prevailing.
  • A person whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political higher-up, stands a better chance of elevation.
• It is not necessary that such a person must be competent because sometimes even less competent persons are inducted.

Way forward

• National Judicial Appointments Commission
  • An alternative was proposed in form of the National Judicial Appointments Commission, which suggested a body for making appointments, comprising the CJI and two senior most judges, the law minister, and two “eminent” persons selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.
  • While the bill introduced for it was passed by the Parliament, it was ultimately struck down by the Supreme Court in 2015. 

Source: IE