Explained: Here’s how the Chief Justice of India is appointed

A copy of the notification issued in this regard and the warrant of appointment have been handed over to Justice Ramana, the statement said.

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.

Read: Who is Justice NV Ramana, the next Chief Justice of India?

The Convention

The outgoing CJI recommends his successor – a practice, which is strictly based on seniority. The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.

Thus, after a CJI retires at the age of 65, the senior most judge in the Supreme Court becomes the CJI. 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.

In cases where the two judges have the same seniority, other factors, like who among the two has more years of experience in the High Court or whether any of them was nominated from the bar directly, or who took the oath first, come into play.

In August 2017, for example, Justice Dipak Misra and Justice Jasti Chelameswar, were both sworn in on the same day as Judges of the Supreme Court, but Justice Misra was anointed as the CJI despite being four months younger to Justice Chelameswar. Both were elevated to the Supreme Court as Judges on October 10, 2011. But 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.

The Memorandum of Procedure (MoP)

The actual procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary. The MoP lays down that the 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 office.

The Union Law Minister initiates the procedure by seeking the recommendation of the outgoing CJI at an ‘appropriate time’, as per the MoP. If the incumbent CJI has any doubts about the fitness of the senior most judge to hold the office of the Chief Justice of India, he can consult the collegium.

“The Law Minister will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment,” the MoP reads.  The MoP is silent about a situation when the government disagrees with the incumbent CJI’s recommendation.

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.

Exceptions

Justice Ramana will be the 48th Chief Justice of India since the establishment of the Supreme Court in 1950. The conventional procedure was followed in all cases, with two notable exceptions – Justices AN Ray and MH Beg, who became CJIs during the tenure of Indira Gandhi as Prime Minister in the 1970s.

In the first exception, Justice AN Ray was appointed as CJI in 1973 despite being fourth in seniority after Justices JM Shelat, KL Hegde and AN Grover. The reason cited was 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’.

Also, read: Judges should be fearless in their decisions: SC's Justice N V Ramana

In the second instance, 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 detention of persons during the Emergency cannot be questioned, even if mala fide and without the authority of law.