The outgoing Chief Justice of India recommends his successor to the Union law minister. This practice is strictly based on seniority
Chief Justice of India N V Ramana (right) recommended to the government the name of Justice Uday Umesh Lalit as his successor. Image courtesy: @ANI/Twitter
Justice Uday Umesh Lalit is set to be the next Chief Justice of India (CJI) after his predecessor NV Ramana recommended his name to the government. Justice Ramana is due to retire on 26 August, after which Justice UU Lalit will take over, becoming India’s 49th CJI.
Official sources in Supreme Court said the CJI “personally handed over a copy of his letter of recommendation dated 03.08.2022” to Justice Lalit “in the morning” on Thursday.
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However, he will only have 74 days in the chair. Here’s why.
Why will the next CJI retire in 74 days?Justice Lalit will only serve as the CJI for 74 days before he retires on 8 November at the age of 65. The shortest tenure so far has been 17 days, served by Justice Kamal Narain Singh in 1991, reports NDTV.
The next in line to be CJI after Justice Lalit to head the judiciary is Justice DY Chandrachud.
In India, the retirement age of a Supreme Court judge is 65 years.
In the United States, judges can work for a lifetime. Judges in the United Kindom and Canada retire at the age of 75 years and 70 years respectively, reports India Today.
How is the CJI picked?
The Consitution does not spell out the procedure for appointing the top judge of the Supreme Court. Article 124 (1) of the Constitution only says, “There shall be a Supreme Court of India consisting of a Chief Justice of India.”
Under Clause (2) of Article 124 of the Constitution, the Chief Justice of India and the judges of the Supreme Court are appointed by the President.
Since there is no provision in the Constitution, the procedure to appoint the CJI is based on convention.
What’s the convention?
The outgoing CJI recommends his successor, a practice which is based strictly on seniority. The recommendation is forwarded by the Union law minister to the prime minister, who in turn, advises the president.
After a CJI retires at the age of 65, the seniormost judge in the Supreme Court is elevated to the position. However, seniority is not defined by age but by the number of years a judge has been serving in the apex court.
In the case where judges have the same seniority, factors like experience in the high court, nomination from the bar, and who took the oath first are considered.
For example, in August 2017, Justice Dipak Misra and Justice Jasti Chelameswar were both sworn in on the same day as Supreme Court judges. Justice Misra was anointed as the CJI despite being four months younger than his peer.
Both were elevated to the Supreme Court as judges on 10 October 2011. In such simultaneous appointments, whoever takes the oath first is accorded seniority. Since Justice Chelameswar took oath after Justice Misra, the latter became senior to him, according to a report in moneycontrol.
While there is no Constitutional provision, a memorandum of procedure is followed to appoint the CJI.
According to Article 124 (2) of the Constitution, the retirement age for Supreme Court judges is 65. PTI
What’s the memorandum of procedure?
According to the Memorandum of Procedure (MoP), the appointment to the office of the CJI should be of the seniormost judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of his successor.
If the incumbent CJI has any doubts about the fitness of the seniormost judge to hold the office, he can consult the collegium.
“After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment,” reads the MoP.
However, the procedure does not throw light on a situation where the government disagrees with the recommendation by the outgoing CJI.
Has the convention always been followed?
Since the establishment of the Supreme Court in 1950, the convention has been largely followed, save for two occasions – Justices AN Ray and MH Beg, who became CJIs in the 1970s when Indira Gandhi was the prime minister.
When Justice AN Ray was appointed as CJI in 1973, he was the fourth in seniority after Justices JM Shelat, KL Hegde and AN Grover. The involvement of three judges in the landmark Kesavananda Bharati case of 1973, which had held that Parliament cannot make amendments to the Constitution that would alter its “basic structure”, was the reason for his elevation.
Justice MH Beg was appointed as the CJI in 1977 despite Justice HR Khanna being the senior judge. Famously, in 1976, Justice Khanna had pronounced in the ADM Jabalpur case that he did not agree with the government’s argument that the detention of persons during the Emergency cannot be questioned, even if mala fide and without the authority of law, according to the moneycontrol report.
With inputs from agencies
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