Is Succession Planning A Relevant Factor For Overlooking Seniority?

Debate in the media and discussions in the bar highlight that one of the reasons for the Supreme Court collegium recommending a Judge, though Junior in all India seniority as well as in his parent High Court is the desire of the Chief Justice of India/the collegium to plan the succession to the office of the Chief Justice of India. The question that arises is whether this can be a relevant consideration in overlooking the inter-se seniority, the suitability and merit being the same.

The majority Judgment in SCAORA reported in 1993 4 SCC 441 in para 478 (3) and (4) has recognized the significance of inter-se seniority amongst Judges in the High Court and their combined seniority on all India basis. The court has held that "unless there be any strong cogent reason to justify a departure that order of seniority must be maintained between them while making their appointment in the Supreme Court." The court has viewed this as necessary to lend greater credence to the process of appointment.

This emphasis on seniority has been treated as applicable only to those considered suitable and at least equally meritorious.

The only other exception contemplated by the court is to give "proper representation of all sections of the people from all parts of the country". There have been instances in the past where such factor has been used for regional representation, representation of minority and representation of women.

There is a further exception which has been carved out in the opinion of Supreme Court in Special Reference No.1 of 1988 reported in 1998 7 SCC 739. In paragraph 27 of the said opinion, the exception made is in respect of "outstanding merit".

As the law stands today, the succession planning in respect of future Chief Justices has not been recognized by the aforesaid Judgments as a factor material for determining suitability of the appointee or for considering any Judge of the High Court, out of turn, for appointment to the Supreme Court. The two exceptions carved out have however been resorted to in succession planning to provide for representation to different sections of people to become Chief Justice.

While all appointments to a judicial position in the highest court have to be made judiciously and objectively, is there a rational or scientific basis for selection of Supreme Court Judges as part of succession planning for filling the post of the Chief Justice of India in the future ? Unlike in the case of the Cabinet Secretary, Chief Secretary of a State, the CBI Director or the Directors General of Police in respect of whom an assured tenure of two years has now been provided, the Chief Justice of India or the Chief Justice of the High Court do not have such assured tenure. There have been Chief Justices who functioned in the said capacity only for a few days. The broad consensus is that this has not adversely impacted the functioning of the judiciary. The single most important reason for this is the collegiality in the functioning of the Court and collectivity in decision making.

The functions of the Chief Justice of India can be broadly classified into four :-

(1) As a Judge discharging adjudicatory functions (CJI is first among equals)

(2) As the head of Supreme Court, discharging administrative functions in respect of the day to day functioning of the Supreme Court (Master of the Roster)

(3) As the head of the judiciary, to make recommendations for appointment to various Tribunals or adjudicatory fora including Lopal, or Director of CBI. (very often, other Judges are nominated to perform these functions)

(4) As the representative voice of the Judiciary, make recommendation for appointment of Judges to the Supreme Court and High Court (Collegium)

As Justice Ahmadi stated in para 313(iv) in the SCAORA Judgment –

Para 313(iv) The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e. first among equals, while on the administrative side he enjoys limited primacy in regard to managing of the court business. But in respect of appointment of Judges in the Supreme Court and High Court, his role is as set out by Justice Verma in para 466 of SCAORA :-

Para 466. The view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.

Justice Sikri expounded on the role and position of the Chief Justice in the case of Shanti Bhushan reported in 2018 8 SCC 396 as follows :-

Para 24. The Constitution is silent on the role of the "Chief Justice". There is no specific provision relating thereto either in the Constitution or even in any other law. The legal position contained in the aforesaid judgments is based upon healthy practice and sound conventions which have been developed over a period of time and that stands engrafted in the Supreme Court Rules. In fact, it is dominated by two stereotypes. One, perpetuated by the common belief and widely endorsed and accepted by all the stakeholders, is that the "Chief Justice" occupies the role of "first among equals". The phrase "among equals" is generally relatable to the judicial function designed to emphasise the fact that voices of the members of a particular Bench, which may include "Chief Justice", are given equal weight and that in deciding cases, the opinion of the "Chief Justice" also carries same weight and is no different from those of other members of the Bench. Thus, in a given case, there is a possibility that the view of the "Chief Justice" may be a minority view and in that eventuality, the outcome of the case would be what majority decides. The word "first" in the aforesaid expression signifies only the fact that the "Chief Justice" is the seniormost Judge of the Court.

Para 25. The second stereotype is that being the "Chief Justice" and seniormost Judge of the Court, he is empowered to exercise "leadership" on the Court. In this role, the "Chief Justice" is expected to be the spokesperson and representative of the judiciary in its dealings with the Executive, Government and the Community. For this purpose, the "Chief Justice" has a general responsibility to ensure that the Court promotes change and reform as appropriate. The judicial reforms, which is a continuing process in order to ensure that there is real access to justice, also becomes the moral responsibility of the "Chief Justice". Such reforms in the administration of justice are not limited to the judicial aspects (i.e. how the cases need to be decided, case management and court management, speedy disposal, etc.) but also include reforms on the administrative side of the legal system as well. Procedural reforms and implementation thereof is an integral part of the judicial reform. The ultimate purpose is to dispense justice, which is the highest and noblest virtue. Again, in this role, the "Chief Justice" gets the authority and responsibility for the administration of the Court, which gives him the ultimate authority for determining the distribution of judicial work load.

Para 39. Thus, the faith of the people is the bedrock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. We live in an age of accountability. What is required of Judges is changing.

Para 40. The world is changing fast. However, the fundamental qualities which the public seek in a Judge have remained the same, as these are eternal verities, which will never change. These are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of law, moral courage or fortitude, and a total commitment that justice should be administered according to law. At the end of the day, it is the virtue of righteousness, impartiality, objectivity and scholarship which a Judge commands to ensure respectability to his judgment.

Para 41. In the aforesaid backdrop, role of the "Chief Justice" as Master of Roster also assumes much significance. Each "Chief Justice" performs his role by consultation and consensus, after taking into account various factors including individual Judges' interests and abilities, their specialization in a particular area, their capacity to handle particular type of cases and many other relevant considerations. However, the exercise of such a power with wisdom has to be left to the "Chief Justice" who is given the prerogative of the "Master of the Roster".

Both Justice Sikri and Justice Ashok Bhushan while upholding the role of the Chief Justice as Master of Roster have underlined that the transaction of business of the Supreme Court cannot be said to be un-guided and without any criteria.

Justice Chandrachud in 2018 5 SCC 341 Ashok Pande vs. Supreme Court of India has stated as follows :-

Para 15. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 (3) reaffirms the position of the Chief Justice of India as the head of the institution. From an institutional perspective the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of Benches the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is above to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution, is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less.

The collegiality of functioning of the Court is also reflected in important policy matters and Judicial and Procedural reforms being decided in full Court meetings and Chief Justices' conferences.

Thus, it is apparent that the role and position of the Chief Justice of India is unlike other executive positions which need minimum tenure in order to be insulated from the political masters. The Constitution of India, with its various safeguards, ensures independence of every Judge of the Supreme Court and the High Court as also security of tenure. The Courts have been jealous in preserving the independence of the judiciary. They are accountable to the Constitution and the people and not to the political executive or the legislature.

Such being the constitutional status of every Judge of the Supreme Court and the High Court, there does not appear to be any rational and scientific basis for succession planning for filling the office of the Chief Justice of India. Every person who is fit to be a Judge of the Supreme Court is equally fit or capable of holding the office of the Chief Justice of India and discharging the said functions. 

Author is a Senior Advocate of Supreme Court and Former Additional Solicitor General of India

[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]