On August 27, Justice UU Lalit will take over as the 49th Chief Justice of India after the incumbent CJI, NV Ramana, demits office. As per protocol, Ramana recommended his successor’s name to the Ministry of Law and Justice through a communication on August 4.
The appointment of judges to the higher judiciary is done by the collegium system and the appointment is made by the President, with the executive head holding the power to appoint the CJI under Article 124.
Moneycontrol takes a look at the procedure for the appointment of the CJI.
Recommendation of the successor
As is the protocol, the senior-most judge of the Supreme Court is designated as the CJI. As per practice, a formal recommendation of the CJI-designate is sought from the incumbent CJI, roughly about a month ahead of the latter’s date of retirement.
The seniority of judges is determined by the number of years they have served as a judge of the Supreme Court, and it is not determined by their age. In case two judges were sworn in as Supreme Court judges on the same day, the judge to take oath first would assume seniority.
Seniority of judges becomes the basis for the formation of the collegium and the line of succession for the post of CJI.
The recommendation of the senior-most judge of the Supreme Court is officially communicated by the incumbent CJI to the Ministry of Law and Justice, which, then, relays the communication to the Prime Minister as per the existing Memorandum of Procedure (MoP).
The Prime Minister advises the President on the recommendation and the executive head subsequently makes the appointment under the powers conferred on her under Article 124(2) to make appointments of judges to India’s top court.
Role of the collegium and the government
The process of appointment of judges to the Supreme Court and the high courts is often criticised for its alleged opacity. The process entails recommendation of names for appointments to be made by the Supreme Court Collegium, which is then vetted by the government through its machinery for background checks.
However, in case of appointment to the office of the CJI, the protocol on seniority almost certainly lays down the line of succession and the role of the government is limited to the formal process of seeking recommendation and relaying the same to the Prime Minister and the President.
The incumbent CJI, along with four senior-most judges, comprise the Supreme Court Collegium – the body that is responsible for initiating the process of filling up the vacancies in the higher judiciary. The second senior-most judge proceeds to take over as the CJI.
The line of succession for the post of the CJI can be determined easily by evaluating who the second senior-most judge will be when the post is scheduled to fall vacant. The protocol of seniority had seen exceptions on two occasions during the tenure of Indira Gandhi as Prime Minister.
After the CJI-designate Justice UU Lalit demits office in November this year after a brief tenure of less than three months, Justice DY Chandrachud is scheduled to take over.