How is the Chief Justice of India appointed?

2022 has been the year of change for the Supreme Court as it saw three different Chief Justices filling the office in one single year that is, CJI NV Ramana, CJI UU Lalit & CJI DY Chandrachud. Before independence, the first Chief Justice of India was Mr Sir Maurice Gwyer. He took charge from 1 October 1937 till 25 April 1943. Then, Justice Harilal Jekisundas Kania became the first Indian Chief Justice of India. But who is eligible to become the Chief Justice of India?

The Chief Justice of India is the senior-most judge of the Supreme Court, but again, what exactly do we mean by senior-most? Is it post-wise, promotion-wise, or experience-wise seniority? Remember that it is based on the date of their appointment to the Supreme Court. If two Judges are appointed to the Court on the same day, the Judge who takes the oath first is known as the Senior Judge. 

Let's discuss in this article the meaning of the seniority principle, who appoints CJI. At what age do they retire? What is the history of setting the retirement age? And many more. 

What is the Seniority Principle?

According to this principle, the senior-most Judge of the Supreme Court is appointed as the Chief Justice of India. The principle is an unwritten convention called the' seniority principle' in legal, academic and judicial parlance. It aims to safeguard the judiciary's independence from any sort of political interference. 

History of Seniority Principle

The Supreme Court’s predecessor, the Federal Court, did not provide for any seniority convention. This principle evolved after the demise of the first Chief Justice of India, H.J. Kania, and Prime Minister Jawaharlal Nehru wanted to appoint Justice M.C. Chagla as the Chief Justice of India, then the Chief Justice of Bombay High Court. Did you know? 6 Judges of the Supreme Court threatened to resign if Justice Chagla was appointed as the CJI instead of Justice Patanjali Shastri, the then senior-most Judge of the Supreme Court. Therefore, the Prime Minister ultimately appointed Justice Shastri as the Chief Justice. And it has been a convention since then that the senior-most Judge of the Court is appointed as the CJI. 

The Supreme Court witnessed three different Chief Justices within a very short period this year, i.e., CJI NV Ramana, UU Lalit & DY Chandrachud. But why so? As they have reached the age of 65 years in 2022. Let’s go through the retirement age of Supreme Court Judges. 

What is the retirement age of Supreme Court Judges?

• According to Articles 124(2) and 217(1) of the Indian Constitution, judges of the Supreme Court and High Courts hold their offices until 65 and 62 years, respectively. 

• This age of 62 years in the case of High Court Judges was not always the same from the beginning. The Constituent Assembly fixed the retirement age of High Court judges at 60, which was later increased to 62 by a constitutional amendment in 1963. 

• A second attempt was made in 2010 with the 114th constitutional amendment bill to bring the retirement age of High Court judges in compliance with that of Supreme Court judges. 

• This bill lapsed with the dissolution of that Lok Sabha and the retirement age of Supreme Court judges has remained the same since the commencement of the Indian Constitution.

• Later, the Constituent Assembly was divided over the question of the retirement age of judges, with some considering appointment to be made for life while others considering 68 years as the upper limit. 

• Jawaharlal Nehru's proposal fixed the retirement period of 65 years for Supreme Court judges as given in the present Constitution. 

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Who can become a CJI?

• The person must be an Indian citizen.

• The person must have been a Judge of a High Court or of two or more such Courts in succession for at least five years.

• The person must have been for at least ten years an advocate of a High Court or two or more such Courts in succession.

• The person must 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 of India under Article 124(2) of the Indian Constitution. Article 124 enshrines that the President's appointment is to be done "after consultation" with the judges of the Supreme Court, as the President may "deem necessary."

On the other hand, Article 217 deals with the appointment of High Court judges and says the President must consult the CJI, Governor, and Chief Justice of the High Court concerned. So, a CJI is appointed until they reach the age of 65, while High Court judges retire at the age of 62.

How many times has the senior-most Judge of the Supreme Court been superseded?

The seniority principle has been defeated thrice in the Court's history. This convention was violated for the first time in February 1964, when Justice Gajendragadkar was appointed as the Chief Justice, superseding Justice Imam. Then, the seniority principle was defeated twice during the tenure of PM Indira Gandhi. These supersessions were highly criticised. 

On the other hand, the Indira Gandhi Government in 1973 appointed Justice A.N. Ray as the Chief Justice of India, superseding Justice Shelat, the senior-most Judge of the Court, as well as two other Judges, which was also criticized. This appointment was made a day after the Court’s judgment in Kesavananda Bharati v State of Kerala (1973), where the majority held that Parliament was not empowered to pass amendments by violating the basic structure of the Constitution. As Justice Ray had dissented, stating that there was no limitation on Parliament's power to amend the Constitution, the Indira Gandhi government in 1973 didn’t appoint the senior-most Judge (Justice Shelat) as the Chief Justice but rather appointed Justice Ray as the CJI. 

Then, in another incident, the Union government decided to appoint Justice Beg as CJI, superseding Justice Khanna instead. In ADM Jabalpur v. Shivkant Shukla (1976), Justice Khanna, the sole dissenter, stated that the Right to Life under Article 21 could not be suspended even during a National Emergency. Feared by such supersession that Justice Beg might become CJI, even the Supreme Court Bar Association held a meeting where it passed a resolution stating that the appointment of the CJI must be free from Executive influence.

Conclusion

The Morarji Desai Government restored the seniority principle after the retirement of Justice Beg. With India witnessing different CJIs in a short span, there have been demands for increasing the tenure of Supreme Court Judges to at least three years and increasing the retirement age from 65 to 70 as they retire the moment they reach 65 years as of now.