It was a packed gathering of advocates in Courtroom no 5 this morning. At the outset, Justice Gogoi indicated that he is recusing from hearing Item no 57, which was a writ petition seeking Union of India (Centre) to consider representations seeking the appointment of Justice Chelameswar as the next Chief Justice of India. Following this, the petitioner mentioned the matter before CJI T.S.Thakur who directed the matter to be listed before the Vacation Bench.
Are you wondering what all this is about and why it is being discussed here?
Chief Justice of India T.S. Thakur will demit office on January 3, 2017 and following this, Justice Jagdish Singh Khehar, the senior most judge, will succeed him, as per prevailing convention of appointment based on Seniority.
A writ petition was filed by a NLC – a lawyers’ organisation – which has filed a writ petition of mandamus before Supreme Court to consider representations seeking Justice Chelameswar’s appointment as the next CJI.
This may raise a rational question in your mind while reading this – How is the Chief Justice of India appointed and how does the “selection” process work? And why is it of importance?
Let us cover some basics on this:
Article 124 of the Constitution provides for the appointment of the CJI and states that every Judge of the Supreme Court should be appointed by the President of India, but it does not specifically say that the Chief Justice of India who is to be appointed should be the senior most Supreme Court Judge.
Since Independence, there has always been a silent “tussle for supremacy” between the Executive and the Judiciary in India. Judiciary is revered as the third pillar and a vital one that keeps the “checks and balances” system working smoothly over the legistlature and the executive. For the same reason, the position of the Chief Justice of India is a very critical and important one.
The first time the seeds of this tussle were sown following the demise of the first Chief Justice of India in 1951. At the time, Prime Minister Jawaharlal Nehru reportedly wanted to appoint another Judge but was advised not to do so. Not wanting to provoke a constitutional crisis or undermine the judiciary, Nehru let the seniority rule be applied in the appointment of the Chief Justice of India.
However, this practice went for a toss during Mrs. Indira Gandhi’s tenure as Prime Minister. The Indira Gandhi-led government appointed Justice AN Ray as Chief Justice of India, thus bypassing three senior Supreme Court judges and they immediately resigned. This paved the way for a public outcry about the seniority of Judges being overlooked by the Indira Gandhi-led government.
In Zia Mody’s book “10 Judgments that Changed India,” some vital points regarding the bitter struggle for power between the judiciary and the executive have been mentioned as follows:
1. During the Emergency between 1975 and 1977, as many as 56 High Court judges were transferred from their home High Courts to those in other states as “punishment” for not falling in line with the policies of the Indira Gandhi government.
2. In fact, during Indira Gandhi’s government, sixteen judges were transferred on one day alone!
3. Another practice developed during Indira Gandhi’s government – although vacancies were available for permanent judges, every high court judge was initially appointed as an additional judge before being confirmed as permanent,
The implication was clear – if the Government was unhappy with a certain Judge, they could be refused confirmation.
Coming back to Justice Ranjan Gogoi’s decision, the learned Judge was pleased to recuse himself from the matter that was listed before him, seeking the appointment of Justice Chelameswar as the next Chief Justice of India. However, the matter does not end here as CJI TS Thakur has directed the matter to be listed before the Vacation Bench.
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Who will become the next Chief Justice of India after CJI TS Thakur – that remains to be answered to all the silent questions emerging around the courtroom corridors of the apex court.