The Constitution of India, 1950 is the longest national Constitution of the world. The original Constitution that was adopted and enacted by the Constituent Assembly on 26th November 1949 contained 395 Articles divided into 12 parts and 8 schedules. As of 2014, the total word count of the Indian Constitution was 1,46,385 which is well above the average length of a Constitution which comprises 21, 960 words and it is twenty-times longer than the Constitution of the United States which its current form consists of 7,762 words.
Each Article was drafted, debated and adopted by the Constituent Assembly over a period of three years i.e. from 1946 to 1949, the proceedings of which have been compiled in Twelve Volumes.
"Lively, acrimonious and incisive debates" were witnessed on every clause.
Out of the 395 Articles adopted by the Constituent Assembly, 24 Articles contained in Part V Chapter IV of the Constitution viz. Article 124 to 147 have been dedicated to the Union Judiciary, namely, the Supreme Court of India. The said Articles lay down the nature, scope, powers and functioning of the Supreme Court and the procedure for appointment and removal of Judges. When the Constitution was being drafted, the members of the Ad Hoc Committee on the Supreme Court had in its report recommended that only the main outline of the powers, jurisdiction and nature of the Supreme Court be embodied in the proposed Constitution and detailed provisions be incorporated later in a "separate Judiciary Act to be passed by the Union Legislature."
According to George Gadbois Jr., for reasons not known, it was decided to "abandon the idea of Constitutional brevity and separate Judiciary Act."
While the main outline of the role of the Supreme Court has been set out in the Constitution, there is no specific Article enabling Parliament to enact an all-encompassing "Judiciary Act." However, the Constitution does enable Parliament to legislate on certain aspects of the Judiciary such as the numerical strength of the Judges for the Supreme Court,
the procedure for presenting an address and for the investigation and proof of the misbehavior or incapacity of a Judge of the Supreme Court or High Court,
salaries of the High Court and Supreme Court Judges etc.
Article 124 (2) states that the Judges of the Supreme Court are to be appointed by the President of India on the aid and advice of the Prime Minister and the Council of Ministers
with the Chief Justice of India. The Constitution however contains no Article that specifies how the Chief Justice of India is to be appointed. This is evident from the first proviso to Article 124(2) which reads thus, "Provided that in the case of appointment of a Judge
, the Chief Justice of India shall always be consulted" (Italics supplied).
The absence of such a provision in the Constitution gave impetus to the Supreme Court to develop a practice of recommending the name of senior most Judge of the Supreme Court to be appointed as the Chief Justice of India by the President of India. In context of what is mentioned above, the aim of this Article is to study the development of the practice of appointing the senior most Judge of the Supreme Court as Chief Justice of India and to trace its evolution from a practice to a "Constitutional Convention".
II. THE SOURCE OF THE SENIORITY PRACTICE AND ITS ORIGINS
There is no definite source to attribute the genesis of the practice of appointing the senior most Judges of superior courts as Chief Justices. It is certain that no pre-constitutional enactment endorsed such a practice. Due weightage however was given to "Rank and Precedent" of a judge as is evident from Section 5 of The Indian High Courts Act, 1861.
[13] As per the said Section "the Chief Justice of any such High Court shall have Rank and Precedence before the other Judges of the same Court" however, Judges that had been transferred from the Supreme Court
[14] to the High Court would have a "higher Rank and Precedence" as compared to Judges who were not transferred from the Supreme Court. Except for this exception, all the Judges of each High Court had "Rank and Precedence" according to the "
Seniority of their Appointments, unless otherwise provided in their patents"; thus, establishing a clear hierarchy based on seniority. However, the said principle of seniority had no application whilst appointing the Chief Justice of the concerned High Court. This is apparent from a reading of Section 7 of the 1861 Act which contemplates appointing "one of the judges of the same High Court" and not the "senior most judge" of the High Court in case the office of the Chief Justice is vacant due to the absence of a Chief Justice.
[15] Even the Government of India Act 1935, which established the Federal Court of India, does not contain such a provision. This is clear from a reading of Section 200(2) of the Government of India Act 1935 which states that a Judge of the Federal Court shall be appointed by "His Majesty".
[16] The said 1935 Act did not contain any provision on the appointment of the Chief Justice of India.
In an article written in the Economic and Political Weekly, Dr. Abhinav Chandrachud whilst writing on the said practice carried out a detailed empirical investigation to ascertain whether the "seniority norm" existed prior to the establishment of the Supreme Court of India "specifically, in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna or in the Federal Court of India".
[17] His research concluded that the Bombay, Madras and Calcutta High Courts did not follow the "seniority convention" and even the Federal Court of India did not follow the said practice.
[18] He did however find "weak evidence" to suggest that the said practice "was sparingly followed in some form only in two [High] courts: Allahabad and Patna."
[19] Though he did not make any "normative claims about the seniority convention,"
[20] he did state that "the seniority convention" was "an exception rather than a rule."
[21] The absence of such a practice in pre-independent India is also apparent from a reading on the Constituent Assembly debates particularly with reference to the discussion on the then Draft Article 103 (corresponding to the present day Article 124 of the Constitution).
[22] While there was considerable debate on the word "consultation", nowhere in the debate on the said Draft Article was there any discussion let alone reference to the seniority practice.
[23] Out of the several amendments that were proposed, two amendments that are of significance were the ones moved by Prof. Shibban Lal Saksena and Mr. B. Pocker Sahib because they dealt directly with the procedure for appointing of the Chief Justice of India.
[24] Prof Saksena had suggested that "the Chief Justice of the Supreme Court" be appointed by the President "subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both Houses of Parliament."
[25] On the other hand, Mr. Pocker Sahib had suggested "the Chief Justice of India" be appointed by the President "after consultation with the judges of the Supreme Court and the Chief Justices of the High Court in the States."
[26] The amendment moved by Prof. Saksena did find favour with members such as Pandit Thakur Das Bhargava who was of the opinion that such a method of appointment "would inspire much more confidence in the Chief Justice of the Supreme Court"
[27] However, Shri Biswanath Das found that the said amendment proposed by Prof. Saksena would "import a very dangerous principle."
[28] The comments of Shri Das on clause (2) of article 103 which provided for consultation with the Chief Justice of India "in the case of a judge other than the Chief Justice" are interesting because the learned member was of the view that there was no "reason or justification" for the retention of the said proviso since the Chief Justice "is a very responsible person" and there was "no reason why he should not be consulted
in the case of the appointment of the Chief Justice who is to be his successor."[29] Both the amendments that were moved by Prof. Saksena and Mr. Pocker Sahib were eventually "negatived" but the proviso to Draft Article 103 remained and found its place in the final draft of the Constitution as a proviso to sub-Article 2 of Article 124. Therefore, from a reading of the Constituent Assembly debates, it is quite apparent that such seniority principle was not discussed because it never existed in pre-independent India but it appears that the outgoing Chief Justice was generally consulted before appointing the succeeding Chief Justice of the Court. This was evident when the Viceroy of India Lord Linlithgow, sent Sir Maurice Gywer a letter of apology dated 13
th November 1942 for committing "a serious error in procedure" by not consulting him as the outgoing Chief Justice as per the "memorandum of procedure" when Sir Patrick Spens was appointed as his successor in 1942.
[30] Between 1937 to 1947, the Federal Court consisted of only three Judges, though Section 200 (1) of the Government of India Act 1935 provided for a bench strength of not exceeding six Judges.
[31] Sir Patrik Spens was the last British Chief Justice of the Federal Court and resigned two days before independence.
[32] At the time of resignation, the other two puisne Judges of the Federal Court were Harilal J. Kania, who was appointed to the Federal Court on 20
th June 1946
[33] and Sir Syed Fazl Ali, who was appointed to the Federal Court almost a year later i.e. on 9
th June 1947.
[34] The resignation of Sir Patrik Spens gave way to appointment of
the senior most puisne judge of the Federal Court, Harilal J. Kania J. two days later viz. on 15
th August 1947 as the First Indian Chief Justice of the Federal Court of a newly independent India.
[35] Thus laying the foundation for the practice of appointing the senior most judge as Chief Justice of the Federal Court and subsequently, the Supreme Court. During initial years of the working of the Constitution, it appears that attempts were made by the Nehru Government to appoint Judges other than the senior most Judge of the Supreme Court to the office of the Chief Justice of India. Granville Austin in his book on the working of the Indian Constitution while referring to Justice B.P. Sinha's autobiography
[36] states that B.P. Sinha "was told" that upon Kania's death, the Nehru Government had been inclined to appoint S.R. Das as Chief Justice over the then senior most judge at the time Patanjali Sastri, however, the "unwritten law" prevented this from happening.
[37] After Sastri's retirement, there was also talk of B.K. Mukherjea or M.C. Chagla of the Bombay High Court being appointed as Chief Justice over the senior most Judge at the time M.C. Mahajan; however, it appears that Nehru "backed down" after the all the Judges of the Supreme Court collectively threatened to resign.
[38] Though the accuracy of these incidents are open to conjecture, they do indicate that on the Constitution coming into force, the seniority practice had begun to take its full effect, at least in the initial years of the Constitution. The first eight years of the Constitution and the Supreme Court saw as many as five Chief Justices being appointed in quick succession solely based on seniority.
[39] This prompted the Law Commission of India in its Fourteenth Report to comment on the Tenure of the Chief Justice and Method of Appointment.
[40] The Commission "bestowed anxious consideration" on the "
practice till now for the senior most puisne judge to be promoted to be the Chief Justice on the occurrence of a vacancy" and stated that succession to the office of the Chief Justice of India could not be regulated by "mere seniority."
[41] The Commission was of the view that it was "necessary to set a healthy convention" on "special considerations" for appointment of the Chief Justice of India and the senior most puisne Judge should not as "a matter of course" be appointed as Chief Justice.
[42] H.M. Seervai however was of the view that the "convention was right" as it secured judicial independence, but he submitted that the convention should prescribe a minimum period of not less than one year.
[43]
III. THE MEANING OF A CONSTITUTIONAL CONVENTION AND ITS DISTINCTION FROM A PRACTICE
It is worth noting that the Law Commission in its Fourteenth Report specifically refers to the method of appointment of the Chief Justice of India quite consciously as a "practice" not a "convention" and in fact specifically emphasized the need to establish a "healthy Convention."
[44] However, authorities on Constitutional Law such as Seervai have called the method of appointment a "convention."
[45]Granville Austin has described it as a "convention of promotion by seniority"
[46] and had even gone to the extent of calling it "an unwritten law"
[47]. While, Gadbois uses the same term used in the Fourteenth Law Commission Report and referrers to it as "a practice."
[48] It would be necessary to understand the meaning of the term "convention" and "conventions of the Constitution" or "Constitutional Conventions" and its distinction from a practice.
Conventions are "rules that define major non-legal rights, powers and obligations of office-holders in the three branches of Government, or relations between the Government and organs of Government."
[49] They supplement the legal rules of the constitution, define practices of the constitution and provide "the flesh which clothes the dry bones of the law."
[50] According to Hilaire Barnett, "A Constitutional Convention is a non-legal rule which imposes an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism; and that criticism will generally take the form of an accusation of 'unconstitutional conduct.'"
[51] Since they are "non-legal rules," they can only be recognized by Courts and the Courts do not have the jurisdiction to enforce these convention rules; therefore, there is no question of a
breach of a convention since they are unenforceable.
[52] A.V. Dicey in his lectures on "The Law of the Constitution" states that "conventions of the constitution" "looked at as a whole are customs, or understandings as to the mode in which the several members of the sovereign legislative body" namely "the King in Parliament" "should each exercise their discretionary authority."
[53] They are "in short rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown"
[54] According to Dicey, Constitutional Conventions are mainly rules for governing exercise of "prerogative" which means the remaining portion of the Crown's original authority which can be exercised at the Crown's discretion.
[55] They consist of "customs,
practices, maxims, or precepts which are not enforced or recognized by the Courts" and they do not make up a body of laws but of "constitutional or political ethics."
[56] Customs,
practices, maxims or precepts are components or parts of Constitutional Conventions but independently they cannot be termed as Constitutional Conventions.
The difference between a Constitutional Convention and a practice has been aptly put forth by Barnett who is of the opinion that Dicey's definition of conventions is inaccurate as it suggests that conventions are of the same quality as "understandings, habits or practices."
[57]According to Barnett conventions are conceptually different from "habits or "practices" in the sense that these concepts do not prescribe or dictate "what ought to happen but are merely descriptive of what in fact does happen."
[58] A practice is "a usual or customary action or proceeding."
[59] It basically means that it the usual way of doing a particular thing in a particular way which due to past experience has become the correct way of doing something and unless there are "justifiable reasons" the practice must be adhered to.
[60] A practice is no more than an "emergent or potential convention and has not yet acquired the binding characteristic of a rule."
[61] A practice followed over a period of time evolves into a Convention.
[62] It is therefore misleading to refer to any existing constitutional practice as a convention.
[63] The distinction between a practice and a Constitutional Convention can be drawn on the basis of the concept of obligation and rule. While a practice imposes a weak obligation, a constitutional convention imposes an absolute obligation.
[64] Further, a justification is required to deviate from a practice, however, if a Constitutional Convention is not followed, a charge of unconstitutional conduct can be levied.
[65]
IV. THE EVOLUTION OF THE SENIORITY PRACTICE INTO A CONSTITUTIONAL CONVENTION
As mentioned in Part II of this article, the practice of appointing the senior most Judge of the Supreme Court as Chief Justice of India began to take full effect shortly after the Constitution came into force when unsuccessful attempts were apparently made by the Nehru Government to appoint Judges other than the senior most Judge as Chief Justice of India during the tenures of Harilal Kania C..J. (26-01-1950 to 06-11-1951) and M. Patanjali Sastri C.J. (7-11-1951 to 03-01-1954).
[66] This practice was followed consistently over the next ten years till 1964 when a "justifiable deviation" occurred in the practice due to the illness of S. Jaffer Imam J.
[67] Imam J. who was the second senior most judge after Bhuvneshwar Prasad Sinha C.J., then Chief Justice of India was superseded by the third senior most Judge namely P.B. Gajendragadkar J. who became Chief Justice of India on 1
st February 1964.
[68] This "justifiable deviation" from the practice was described by Granville Austin as a "genuine supersession" as the "action arose no controversy because Imam had an illness that affected his mind."
[69] However, an "unjustifiable deviation" that definitely set the cat amongst the pigeons was when A.N. Ray J., was appointed Chief Justice of India on 26th April 1973 by the President of India upon the retirement of S.M. Sikri C.J. a day earlier, thereby superseding three senior judges namely J.M. Shelat J., K.S. Hegde J. and A.N. Grover J. (in order of their seniority). For obvious reasons, Shelat J. and Hegde J. promptly resigned on 30th April 1973. Grover J. followed suit and resigned on 31st May 1973. The reasons for this "supersession" are numerous and have been endlessly debated by historians and jurists alike. Analyzing the same would be beyond the scope of this article but it is interesting to note that the appointment of A.N. Ray as Chief Justice of India was challenged before a Five-Judge Bench of the Honourable Delhi High Court in P.L. Lakhanpal v. A.N. Ray and others.
[70] The Petitioners had in the said case prayed for a writ of
quo-warranto to challenge the appointment of A.N. Ray J. as Chief Justice of India.
[71] One of the grounds of challenge was that the appointment of A.N. Ray J. as Chief Justice of India violated Article 124(2) of the Constitution as "
the rule of seniority which inheres" Article 124 was not followed.
[72] The Petitioners had also contended that the "rule of seniority" is a "rule of law" and is inherent in Article 124 of the Constitution.
[73] The Petitioners equated the "rule of seniority" with "a rule of law" having binding effect. The Respondents raised three preliminary objections, one of them being that since a writ of
quo-warranto is a writ of technical nature, it would be futile to grant the writ because as a result of the resignations of Shelat J., Hegde J. and Grover J., A.N. Ray J. had become the senior-most puisne Judge and not only could Ray J. be re-appointed but he would be entitled to be re-appointed as Chief Justice of India.
[74] The Delhi High Court found favour in the Respondents' argument and eventually upheld the contention of Respondents' that issuing a writ of
quo-warranto would be futile.
[75] However, the Court did not adjudicate upon or directly deal with the Petitioners' contention that "the rule of seniority is a rule of law."
History repeated itself four years later when M.H. Beg J. succeeded A.N. Ray C.J. and was appointed Chief Justice of India on 29th January 1977 superseding the then senior most Judge H.R. Khanna J. In his memories Khanna J. states that he was mentally prepared for the eventually of his supersession and the moment he heard the five o'clock news on the radio on 28th January 1977, he wrote to the President of India his letter of resignation and had it delivered on the very same day.
[76] The deviation from the practice was extremely unjustified and expectedly caused quite a furor at the time. However, since the practice had yet not been elevated to the status of a Constitutional Convention, a "charge of unconstitutional conduct" though levied was not acquiesced to the Supreme Court. This is evident from the judgment delivered by D.A. Desai J. five years later in the seven-Judge Bench decision in S.P. Gupta v. Union of India and another
[77]( hereinafter referred to as the
"Judges case"). In his judgment, Desai J. had recorded the submission of Mr. H.M. Seervai who had in the course of his argument on Article 124(2) suggested "that a
constitutional convention must be read that the senior most amongst the puisne Judges of the Supreme Court should as a rule be appointed as Chief Justice of India except when he is physically unfit to shoulder the responsibilities" so that the process of consultation cannot be obviated by the President acting at the behest of the Prime Minister and the Council of Ministers. In this context, Mr. Seervai referred to Article 126 of the Constitution of India which permitted the President to appoint even the junior most Judge of the Supreme Court as Chief Justice. Desai J. however, did not conclusively opine the on issue and kept "the question of construction" of Article 124 in this manner open.
[78] It was only in 1993 that the Supreme Court officially recognized the seniority practice as a constitutional convention in nine-Judge Bench decision in Supreme Court Advocates on Record Association v. Union of India
[79](hereinafter referred to as the
"Second Judges Case"). In the majority judgment of J.S. Verma J., the Court stated, "Apart from the two well-known departures, appointments to the office of the Chief Justice of India have,
by convention, been of the senior most Judge of the Supreme Court
considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India."
[80] (Italics and emphasis supplied). Verma J. then went on to hold that the "provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the senior most Judge to hold the office, which alone may permit and justify a departure from the longstanding convention."
[81] Verma J. further stated, "There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary."
[82] Verma J. thereafter went onto to hold that the "Appointment to the office of the Chief Justice of India should be the senior most Judge of the Supreme Court
considered fit to hold the office."
[83] (Italics supplied). Though the practice of appointing the senior most judge as Chief Justice has been recognized as a convention, the majority judgment delivered by Verma J. has added an additional criterion by using the expression "
considered fit to hold office". This poses difficulty as it is not qualified with a certain aspect of fitness such as "physical" fitness thereby making the appointment process rather subjective. It would give wide discretion to either the President of India or even the outgoing Chief Justice of India who submits the proposal, to decide whether the senior most Judge of is "
considered fit to hold the office" and if the senior most Judge is not considered fit, then consultation with other Judges will be initiated. It is submitted that once the senior most Judge has been considered fit to be a Judge of the Supreme Court of India, then there cannot be any doubt about his or her fitness to be appointed as Chief Justice of India except on the ground of proved misbehavior on incapacity in which case he or she can be removed by Parliament under Article 124(5) of the Constitution of India. The expression
"considered fit to hold the office" defeats the very purpose of the seniority principle and would give an opportunity to the Government of the day to attempt to interfere in the process of appointing the senior most Judge as the Chief Justice of India. This is evident from a reading of Section 5
[84] of the National Judicial Appointments Commission Act, 2014. The entire Act was challenged and eventually struck down in 2015 by the five-Judge Bench of the Supreme Court in
Supreme Court Advocates-on-record Association and another v. Union of India[85] Sub-section 1 of Section 5 stated that the National Judicial Appointments Commission
[86] "shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India
if he is considered fit to hold office:" The sub-section had intentionally omitted to use the word "doubt" or the words "if there is any doubt about the fitness of the senior most Judge" that had been used in the majority judgment in the
Second Judges Case as well as in paragraph 2.1 of the Memorandum of Procedure of appointment of Supreme Court Judges
[87] prepared by the Ministry of Law and Justice. Had this Section remained in the statute book, it would have probably given wide discretion to the Commission to deviate from the seniority convention.
However, notwithstanding, what is mentioned above, the majority Judgment of the Second Judges Case did by "judge made law" declare that the practice of appointing the senior most Judge as Chief Justice of India was a convention and a "long standing" one at that. The decision has become the law of the land declared under Article 141 of the Constitution of India
[88] and is binding on the Legislature, Executive and even the Judiciary. Further, even after the judgment in the
Second Judges Case in 1993, the convention of appointing the senior most Judge of the Supreme Court of India has Chief Justice has been scrupulously followed and there has been no deviation from this convention in any of the twenty-one appointments from October 1993 (when the judgment was delivered) to date.
[89] The recent differences that became public between the former Chief Justice of India Dipak Misra and the then members of the collegium one of whom is now the incumbent Chief Justice of India did not in any way result in a deviation from the seniority convention, in spite of the speculation in this regard.
[90] Deviation from this Constitutional Convention would have resulted, in the words Hiliare Barnett, in a "charge of unconstitutional conduct" towards the person responsible for the deviation which no Government even with a brute majority would ever want to risk in this country ever again.
V. CONCLUSION
The evolution of the seniority principle from a practice to a convention has been a slow and steady process not without any hiccups along the way. The supersessions of 1973 and 1977 though unjustified, did give impetus to the Supreme Court to eventually hold in 1993 that the appointment of the senior most Judge of the Supreme Court as the Chief Justice of India is a Constitutional Convention, albeit with the incorporation of the fitness criterion. Considering the fact that the Supreme Court of India is only in its 69th year, it would be too soon to conclude that the seniority convention for the appointment of the Chief Justice of India has stood the test of time. But it is certainly clear that this seniority convention is now an integral part of Constitutional Law in India. The Constitution of India like all Constitutions of the world is an organic document; however, its evolution cannot be possible without a firm foundation. Foundations cannot be solidified without the help of Constitutional Conventions. And this is why a Constitutional Convention, should be zealously guarded and preserved, particularly when it concerns the appointment of the Chief Justice of India.
The Author is an independent practitioner in the Bombay High Court. He can be contacted on dormaandalal@gmail.com
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
[4] George H. Gadbois, Jr., Supreme Court of India The Beginnings, Ed. By Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018 at page 86. As quoted from the Report of Ad hoc Committee on the Supreme Court, paragraph 16.
[8] Article 124(5) and Article 218
[10]Article 74 Council of Ministers to aid and advise President- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
[11]Article 124 (2)- Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
The word consultation in Article 124 (2) has been interpreted to effectively mean primacy of the opinion of the Chief Justice of India by the majority judgment in the case of Supreme Court Advocates-on-Record Association and others v. Union of India (1993) 4 SCC 441, 709-710 (para 486) This in effect means that in case of a conflict between the opinions of the President and the Chief Justice, the opinion of the Chief Justice will prevail. Therefore, no appointment can be made without the "concurrence" of the Chief Justice, although the majority has not specifically interpreted "consultation" to mean "concurrence". However, the dissenting opinion of Ahmadi J. states that the word "consultation" cannot be interpreted to mean "concurrence" (SCC 616-625-para 291 293, 300). Though not specifically stated, Punchhi J. has while studying the legislative history of British India and the Constituent Assembly Debates come to the conclusion that the word "consultation" was preferred to "concurrence" (SCC 715-716 para 495). Both Ahmadi J and Punchhi J. have held that the Chief Justice of India will not have primacy of opinion in appointments.
[12] Though in the first clause of the proviso, the words used are simply "other than the Chief Justice" and not "other than the Chief Justice of India" , it is apparent from a reading of the marginal note of the Article and from the use of the article "the" before Chief Justice, that it would mean "The Chief Justice of India" and not "A Chief Justice of a High Court." Moreover, the Article is placed in Chapter IV of Part V which specifically deals with "The Union Judiciary."
[13] The Indian High Courts Act 1861 was the first Act that was enacted to establish the Charter High Courts in Bengal and at Madras and Bombay and several other Presidencies. Section 5 reads thus:
Precedence of Judges of High Courts – The Chief justice of any High Court shall have Rank and Precedence before the other Judges of the same Court, and such of the other Judges of such Court as on its Establishment shall have been transferred thereto from the Supreme Court shall have Rank and Precedence before the Judges of the high Court not transferred from the Supreme Court, and except as aforesaid, all the Judges of each High Court shall have Rank and precedence according to the Seniority of their Appointments, unless otherwise provided in their Patents. As quoted from the original text reproduced in "Indian Constitutional Documents (1771=1915)" Compiled and Edited by Panchanandas Mukherji, Calcutta Thacker Spink & Co 1915 page 345
[14] In this context it means the Supreme Court of Judicature of Calcutta established by the Regulating Act of 1773
[15] Section 7 Provision for vacancy of the office of Chief-Justice of other Judge- Upon the happening of a vacancy in the office of the Chief Justice, and during any absence of a Chief Justice, the Governor-General in Council or Governor in Council, as the case may be, shall appoint one of the Judges of the same High Court to perform the duties of Chief Justice of the said Court until some person has been appointed by Her Majesty to the office of the Chief Justice of the same Court, and has entered on the discharge of the duties of such office, or until the Chief Justice has returned from such absence; and upon the happening of a vacancy in the office of any other Judge of any such High Court, and during any Absence of any such Judge to act as Chief Justice, it shall be lawful for the Governor-General in Council or Governor in Council, as the case may be, to appoint a Person, with such Qualifications, as are required in Persons to be appointed to the High Court, to act as a Judge of the said High Court and the Person so appointed shall be authorized to sit and to perform the Duties of a Judge of the said Court until some Person has been appointed by Her Majesty to the office of Judge of the same Court, and has entered on the Discharge of the Duties of such Office, or until the Governor-General returned from such Absence, or until the Governor-General in Council or Governor in Council as aforesaid shall see Cause to cancel the Appointment of such acting Judge. Indian Constitutional Documents Supra note 13 page 346 The said Section is similar to Article 126 of the Constitution of India which conferrers on the President the power to appoint an Acting Chief Justice from "one of the other Judges" of the Supreme Court to perform "the duties of the office" of the Chief Justice when the said office is vacant or when the Chief Justice "by reason of absence of otherwise is unable to perform the duties of his office."
[17] Abhinav Chandrachud, Supreme Court's Seniority Norm Historical Origins, Economic and Political Weekly, Vol. XLVII, No. 8, February 25, 2012
[19] Ibid page 26, 28. According to Dr. Chandrachud, with the appointment of Shah Muhammad Sulaiman as the first Indian Chief Justice of the Allahabad High Court, between 1932 and 1946, "the seniority convention appeared to have been followed for the next two chief justices." With respect to the Patna High Court, the seniority convention was followed between 1943 and 1950.
[22] Constituent Assembly Debates, Official Report, Volume VIII, Tuesday, 24th May 1949 page 229 to 267
[24] Ibid page 230 to 234. Amendment No. 1817 was moved by Prof. Shibban Lal Saksena and Amendment No. 1819 was moved by Mr. B. Pocker Sahib
[25] '(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the Houses of Parliament.'
[26] '(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme and the Chief Justice of the High Court in the States and every judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.'
[27] Supra Note 22 page 245
[30] H.M. Seervai, Constitutional Law of India, Fourth Edition, Volume 3, page 2956; See also, Granville Austin, Working A Democratic Constitution, A History of the Indian Experience, Oxford University Press, eleventh impression 2013, page 135, foot note 36.
[31] George Gadbois Jr., The Federal Court of India: 1937-1950, 6 JILI 253 (1964) at page 254 foot note 3.
Section 200 Establishment and Constitution of the Federal Court- (1) There shall be a Federal Court consisting of a Chief Justice of India and such number of other judges as His Majesty may deem necessary, but unless and until an address has been presented by the Federal Legislature to the Governor-General for submission to His Majesty praying for an increase in the number of judges, the number of puisne judges shall not exceed six.
[32] Supra Note 4 page 75
[36] B.P. Sinha, Reminiscences and Reflections of a Chief Justice, B.R. Publishing Corporation, Delhi, 1985
[37] Granville Austin, Working A Democratic Constitution, A History of the Indian Experience, Oxford University Press, Eleventh impression 2013, page 134. There is no reference to how the "unwritten law" had developed or originated
[38] Ibid The said incident was narrated to Granville Austin by Mr. P.K. Chatterjee who was an Advocate practicing in the Supreme Court and whose family was on friendly terms with Justice B.K. Mukherjea's family.
[39] The Chief Justice between 1950 and 1958 were as follows: 1) Harilal Jekisundas Kania-Appointed as The Chief Justice of India on 26-01-1950, 2) M. Patanjali Sastri- Appointed as The Chief Justice of India on 07-11-1951, 3) Mehr Chand Mahajan- Appointed as The Chief Justice of India on 04-01-1954, 4) Bijan Kumar Mukherjea-Appointed as The Chief Justice of India on 23-12-1954, 5) Sudhi Ranjan Das-Appointed as The Chief Justice of India on 01-02-1956. http://supremecourtofindia.nic.in/chief-justice-judges (Last visited on 15-2-2018 at 12:53 p.m.)
[41] Ibid page 39 para 18
[43] Supra Note 30 page 2816
[45] Supra note 30 pages 2619, 2813-2814, 2816, 2819, 2820. Also see the argument of H.M. Seervai on this issue that has been recorded by Desai J. in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, 636-639 (paras 770 and 771).
[46] Supra note 37 page 135
[48] Supra note 4 page 96
[49] P. Ramanatha Aiyar's, Advanced Law Lexicon, 5th Edition, Volume 1, page 1136; as quoted from George Marshall, Constitutional Conventions: Rules and Forms of Political Accountability, page 210. As cited in Vidadala Harinadhababu v. N.T. Ramarao (FB), AIR 1990 AP 20, 43
[50] Hiliare Barnett, Constitutional & Administrative Law, Routledge.Cavendish, Sixth Edition 2006, page 25; as quoted from Sir Ivor Jennings, The Law and the Constitution, University of London, 1959
[53] A.V. Dicey, Introduction to the Study of The Law of the Constitution, Volume 1 Ed. J.W.F. Allison, Oxford University Press 2013, Lecture VIII The Connection between the Law of the Constitution and the Conventions of the Constitution page 190.
[57] Supra Note 49 page 27
[59] Ibid as quoted from Collins' English Dictionary
[62] M.P. Jain, Indian Constitutional Law, 6th Edition Volume 2-page 2331
[63] Lorne Sossin and Adam M. Dodek, When Silence Isn't Golden: Constitutional Conventions, Constitutional Culture, and the Governor General PARLIAMENTARY DEMOCRACY IN CRISIS, Peter H. Russell, Lorne Sossin, eds., University of Toronto Press, 2009 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394530 (Last Visited on 26-2-2018 at 9:06 PM)
[64] Supra Note 50 page 28,29
[67] Supra Note 37-page 135 foot note 36.
[70] ILR (1974) Delhi 725. The Judgment was delivered by the A.N. Andley C.J. (as he then was) of the Delhi High Court.
[72] Ibid page 729, 730. The other grounds of challenge were that the mandatory consultation comprehended was not made thereby violating Article 124(2) of the Constitution and that the appointment was mala fide
