Appointment of CJI – UPSC Prelims

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Constitution on appointment of CJI:
  • The Constitution of India does not have any specific provision for criteria and procedure for appointing the CJI.
  • Article 124(1) and the 2008 amendment of the Indian Constitution states that there shall be a Supreme Court of India consisting of a Chief Justice of India and no. of judges as prescribed by Parliament.
  • Initially, the prescribed no. of judges was 7 excluding CJI. Now the no. is 34 judges including the CJI.
  • The closest mention is in Article 126. It deals with the appointment of an acting CJI.
Convention for appointment of CJI
  • When the incumbent CJI retires (all Supreme Court judges retire at the age of 65), the senior-most judge in the SC becomes the CJI.
  • Seniority is not defined by age but by the number of years an individual has been serving as a judge of the apex court.
What is the procedure? The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary.
  • The procedure is initiated by the Law Minister. He/she shall seek the recommendation of the outgoing CJI at the ‘appropriate time’(near to the date of retirement of the incumbent CJI).
  • The CJI sends his recommendation to the Law Ministry. If there are any doubts, the CJI can consult the collegium as per article 124(2), regarding the fitness of an SC judge to be elevated to the post.
  • After receiving a recommendation from CJI, the law minister forwards it to the Prime Minister. The PM will then advise the same to the President.
  • The President administers the oath of office to the new CJI.
Does the government get a say in the appointment of CJI?
  • Except for the law minister seeking the recommendation from the incumbent CJI and forwarding it to the Prime Minister, the government has no say in the appointment of the CJI.
  • However, the key difference between the appointment of the CJI and the other SC judges are,
  • In the appointment of CJI, the government cannot send the recommendation of the CJI (or the collegium) back for reconsideration.
  • But in the appointment of SC Judges, the government can do so. However, if the collegium reiterates those names then the government cannot object any further.
Are there any exceptions to the above-mentioned procedure?
  • This convention has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
  • Also, in 1975 Justice Mirza Hameedullah Beg was appointed as the CJI superseding Justice Hans Raj Khanna.
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