Procedure For Appointment of Chief Justice Of India Ultra Vires Of Constitutional Tenets: Plea In Supreme Court

A plea has been preferred in the Supreme Court challenging the memorandum of procedure regarding appointment of the Chief Justice of India as ultra vires of Articles 14 & 124 of the Constitution of India.

Petitioner-in-person Bharat Pratap Singh, who is a practicing Advocate of Allahabad High Court has moved the instant petition, stating that the quest for independence of Judiciary which is a cardinal feature of the Constitution of India, is at present a road half travelled.

In this light, the petitioner avers that as the Chief Justice of India is the Constitutional head of the judiciary and is appointed on the basis of seniority on recommendation of the outgoing Chief Justice of India, the independence of judiciary may be compromised.

"That the procedure for appointment of Chief Justice of India on the basis of seniority alone is a reiteration of feudal custom and akin to rule of primogeniture which has been held ultra vires/ unconstitutional by this Hon'ble Court in various judgments after promulgation of the Constitution of India." - Plea In SC

The plea states that the letter of recommendation by the outgoing CJI in favour of the next senior most judge is "not equal to the recommendation of collegium of the SC but is a creation/revival of another kind of kingship which abolished long ago under the Constitution" and that it militates against the spirit of Article 124 and the mandate of the Supreme Court judgement passed in the case of Supreme Court Advocate-on-Record Association and others Vs. Union of India".

It is stated that owing to the lack of any Constitutional/statutory rule/ law for fixation of seniority, there always stands a chance/ scope of breaking the provision of seniority.

Further, the plea states that if the procedure for the appointment of CJI is in doubt and unconstitutional, talking about independence of judiciary is futile, illusory and day-dreaming. In this context, it is contended that even though the CJI is a different class in terms of administrative powers, salary, oath and office, the Constitution is silent regarding their procedure of appointment.

"Under Article 124(2) and 126 of the Constitution of India which relate to the appointment of judges of the Supreme Court and appointment of Acting Chief Justice do not provide any procedure for appointment of CJI and acting CJI on the basis of seniority.... there is complete lack of due process for appointment of the CJI for the reasons best known to the learned framers of the Constitution," the petitioner states.

Calling the recommendation in favour of the next CJI by the outgoing Chief Justice of India much like a tradition/custom of royalty, the plea states that the same lacks constitutional efficacy and sanctity in a Constitutional Democracy like India.

Apropos this, the plea seeks quashing or upholding the validity of the Memorandum of Procedure for the appointment of the Chief Justice of India.

Additionally, the petitioner has stipulated questions of law pertaining to the procedure of appointment such as whether the current procedure is a constitutionally valid one and is a due process of law.

Further, the petitioner has sought a decision on the questions of :

Whether there is any seniority rule or is list of the SC judges prepared by the Ministry of law/ Supreme Court of India?

Whether the letter of recommendation of the outgoing CJI is a constitutionally valid recommendation as that of the collegium?

Whether the President of India is bound to appoint the senior most judge of the SC as CJI on the basis of the recommendation letter of outgoing CJI as per Memorandum of Procedure without any due process of law?

Whether the CJI is a different class or not?