Appointing The Chief Justice of India–What Is The Criteria?

The current Chief Justice of India S.A. Bobde, is due to retire in April. Justice NV Ramana, the next senior most Judge, is in the line to be next CJI. The Constitution is silent on the procedure for appointment of the CJI and the matter is governed purely by Convention.

The Supreme Court of India is presided over by the Chief Justice of India ('CJI'). Although, the CJI is merely the first amongst equals, s/he is the master of the administrative side of the Court and takes certain crucial decisions. Most importantly, it is the sole prerogative of the Chief to decide on the composition of Benches and the roster of the Court i.e., the nature of cases each Justice will hear.

The Constitution of India is silent on the procedure for appointment of the CJI. However, since its inception, the Court has followed the seniority convention, which is the settled position today. The procedure is unique as the appointment solely depends on the seniority of the Judges. As per convention, on retirement of a CJI, the next senior most Judge of the Court is appointed as the Chief Justice and seniority is determined from the date and time when the Judge takes the oath. For instance, if Judge A and Judge B are sworn in on 05.05.2020, but Judge B is administered the oath first, then s/he shall be senior to Judge A. Since, the age of retirement of a Justice of the Court is 65 years, the moment a Chief Justice retires, the next senior most Judge is sworn in as the Chief. Given the seniority rule, every Judge pursuant to his swearing in knows whether she/he will serve as the CJI or not.

It is believed, that the decision on the order of swearing in is taken by the Collegium but the Executive influence also plays a role. This rule has been heavily criticised, as often times a Judge/Advocate with more experience has been sworn in after a relatively less experienced Judge, resulting in a compromise to the seniority of the former and also losing out on the Chief Justiceship. For instance, in 1988, Justice Kuldip Singh (appointed from the Bench) and Justice AM Ahmadi (appointed from the Bar) were appointed to the Supreme Court on the same day. Justice Singh was older than Justice Ahmadi and also senior in terms of judicial experience. If Justice Singh was sworn in first, he would have been the CJI for over two years while Justice Ahmadi would have been the Chief for few months. However, Justice Ahmadi was given seniority over Justice Singh and he became the 26th Chief Justice of India. Justice Singh subtly referred to this episode in his judgment in Supreme Court Advocates on Record Association vs Union of India.

1. Majority of the CJI's have been Judges appointed from the Bench –

An individual may be appointed as a Judge of the Supreme Court if (a) s/he has been a Judge of a High Court for at least five years ("Appointment from the Bench"); or (b) s/he has been an advocate of a High Court for at least ten years ("Appointment from the Bar"); or (c) s/he is a 'distinguished jurist in the opinion of the President of India. Appointments have arguably been made only in the first two categories.

The Court has had 47 Chief Justices since its establishment, out of which forty-six have been from the Bench and only one has been from the Bar i.e., Justice S.M. Sikri.^[1] Therefore, the chances of a Justice appointed from the Bar to serve as the Chief are very bleak (2%). The most plausible reason behind the Collegium preferring a member appointed from the Bench, could be the experience s/he has had at the High Court.

Statistics support this theory, as 25 out of the 46 CJIs appointed from the Bench i.e., 54%, have served as the Chief Justice of a High Court. This pattern has spiked significantly post the year 2000, as 81% (9/11) of the Chiefs appointed thereafter, have presided over a High Court, whereas pre-2000 the figure was 44% i.e., 16 out of 36 CJIs. The change in pattern shows that the recent Collegiums pose more trust in experienced Justices, especially if they have acted as Chief of a High Court before, rather than appointees of the Bench.

1. Preference for appointing Judges from the presidency High Courts-

I have argued elsewhere, that the Collegium seems to have a favourable predisposition towards appointing Judges from four particular High Courts i.e. Bombay, Calcutta, Madras and Allahabad. This holds true for the position of the CJI as well, as the highest number of CJIs has been from these Courts i.e., Bombay (9), Calcutta (6), Allahabad (5) and Madras (3). Statistically, almost 50% of the Chiefs have been from these High Court (i.e., 23 out of 47) and almost one out of every five is from the Bombay High Court (9/47).^[2]

The dominance of these High Courts is further evidenced from the fact, that 13 of the first 14 Chiefs were appointed from these High Courts, with the exception of Justice BP Sinha (Patna High Court). The appointment of Justice Bhagwati from Gujarat High Court in 1972 broke this pattern and thereafter, Justices from other High Court donned the mantle of the Chief Justice as well. In the 70 years of the Court's history, almost every High Court has had one of its Justices serve as the Chief, with the exception of Andhra Pradesh, Jharkhand, Uttarakhand and Himachal Pradesh.

In terms of tenure, the CJI appointed from the Bombay High Court have had the longest tenure i.e., 6066 out of 24306 days (cumulative). Justice YV Chandrachud had the longest tenure as the CJI, as he served 2696 days (over seven years) in office, while Justice KN Singh had the shortest tenure of seventeen days.

The Chiefs with the four longest tenures were appointed during the early years of the Court.^[3] Thereafter, rarely have CJIs had a tenure lasting over 3 years, with Justice KG Balakrishnan being the last one i.e., 1095 days (appointed in 2010). On an average, a Chief spends 552 days in office,^[4] however, if the appointment was made prior to 1985,^[5] on an average s/he would spend 808 days^[6] in office. The average drops down significantly to 420 days,^[7] if the appointment was made post 1985. Therefore, the current trend is of the Collegiums appointing CJIs that do not have a significantly longer tenure.

1. No female CJI till date-

Till date, no woman Justice has served as the Chief of the Court. This figure is deplorable and reaffirms the accusation of gender bias in matters of appointment. It is believed by many, that the Court could have had its first woman CJI in the form of Justice Ruma Pal. The story goes that in the year 2000, three Justices were to be appointed to the Court and the date of swearing in was fixed on 29.01.2000. Prospective appointees Justice Ruma Pal and Justice Sabharwal were on the same level of seniority and in such tricky situations, according to the settled convention the Justice whose name was higher alphabetically was to be sworn in first, which was Justice Ruma Pal. If the Convention would have been followed, Justice Pal would have served as the Chief after the retirement of Chief Justice Lahoti in 2005.

However, in a surprising turn of events the date of swearing in was preponed to 26.01.2000 to coincide with the Golden Jubilee of the Court and somehow this communication did not reach Justice Pal in time. Justice Pal could not reach in time for the swearing in and Justice Sabharwal was sworn in first and became a senior Justice (Justice Pal was sworn in few hours later). He went on to become 36^th Chief Justice of India.

Justice Ramana, if he is made the next Chief Justice of India, will be the first Judge from the Andhra Pradesh High Court to serve as the CJI. However, his appointment conforms with other behavioural patterns of the Court i.e., appointing only men as the CJI and appointing Judges elevated from the Bench, in particular the ones who have served as the Chief Justice of a High Court.