There have only been two instances in the history of independent India when the senior-most judge was not appointed as Chief Justice of India (CJI). Both happened when Mrs. Indira Gandhi was the Prime Minister of India.
The first instance was in April 1973, when Justice A.N. Ray was appointed as CJI superseding 3 senior judges, namely Justices J.M. Shelat, A.N. Grover and K.S. Hegde.
And, the second such instance was in January 1977, when Justice M.H. Beg was appointed as CJI, superseding the senior-most judge Justice H.R. Khanna. Justice Khanna was apparently penalized by Indira Gandhi for his (brave) dissenting decision in the landmark (notorious) case of ADM Jabalpur v. Shiv Kant Shukla, relating to citizen’s right to judicial scrutiny for arrests during the emergency period. Justice Khanna resigned on the same day, after being superseded.
After these two instances, there has not been even a single departure from the tradition as per which the senior-most judge of the Supreme Court is appointed as the Chief Justice of India.
However, let me state the correct legal position in this regard. Article 124(2) of the Constitution deals with the issue of appointment of Supreme Court judges, including the appointment of the Chief Justice of India:
“(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided further that—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).”
However, it is well known that the above provision in the Constitution has been interpreted in an entirely different manner, by giving rise to the collegium system for appointment of judges. Therefore, what is important with regard to the process of appointment of the Chief Justice of India is the Supreme Court’s interpretation.
This issue has been settled by a 9-judge bench of the Supreme Court in the case of Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 : AIR 1994 SC 268. In this case, it was held by the majority decision as under [para 478(15) of the above judgment]:
“Apart from the two well-known departures, appointments to the office of Chief Justice of India have, by convention, been of the senior-most 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 senior-most 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 form 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.”
And, the conclusion of the majority decision in this case was as under [para 486(6) of the above judgment]:
“Appointment to the office of the Chief Justice of India should be of the senior-most Judge of the Supreme Court considered fit to hold the office.”
Somewhat similar opinions were expressed by other judges in this case.
Therefore, the procedure for appointment of Chief Justice of India is that the incumbent Chief Justice of India (CJI) recommends the name of the Supreme Court judge to be appointed as the next CJI. This is generally done about a month in advance. Normally, the tradition has been that the name of the next senior-most judge is recommended by the outgoing CJI. And, this recommendation is accepted by the President (i.e., the Government of India) by appointing the next CJI as per this recommendation. This tradition has been followed for last about 40 years without any departure.
However, the above judgment provides that if the outgoing CJI considers that the next senior-most judge is not fit to hold the post of CJI and if he therefore recommends the name of another judge for the post of CJI, then the President (which implies the Government of India) can consult other judges in this regard. However, this has never happened in last 40 years, especially, after the said judgment was delivered in 1993.
So, this, in brief, is the correct legal position as to whether the President is bound to appoint the senior-most judge of the Supreme Court as the Chief Justice of India.
