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DAILY NEWS ANALYSIS

  • 15 October, 2022

  • 6 Min Read

Appointment of Chief Justice of India (CJI)

Appointment of Chief Justice of India (CJI)

  • Justice Dhananjaya Y Chandrachud was recently appointed as India's 50th Chief Justice.

  • He will serve for a period of two years before retiring on November 10, 2024.

Regarding Article 124

  • The procedure for appointing the CJI is not mentioned in the Indian Constitution.
  • The Constitution's Article 124 (1) simply states, "There shall be a Supreme Court of India consisting of a Chief Justice of India."
  • According to Clause (2) of Article 124 of the Constitution, every Supreme Court Judge is appointed by the President.
  • As a result, in the absence of a constitutional provision, the procedure for appointing the CJI is based on convention.

The Convention

  • The outgoing CJI advises his successor to follow a practice that is strictly based on seniority.
  • Seniority, on the other hand, is determined not by age but by the number of years a judge has served on the country's highest court.
  • The role of the government: Except for the Union Law Minister seeking the recommendation of the incumbent CJI before sending it to the Prime Minister, the Central government has no role in the appointment of the CJI.

Who can become India's, Chief Justice?

  • Must be an Indian citizen,
  • the individual must have served as a Judge of a High Court or two or more such Courts in succession for at least five years,
  • or as an advocate of a High Court or two or more such Courts for at least ten years,
  • or as a distinguished jurist in the opinion of the President.

Who appoints the Chief Justice?

  • The President appoints the Chief Justice of India and the other Supreme Court judges under clause (2) of Article 124 of the Indian Constitution.
  • Article 217: When appointing High Court judges, the President is required to consult with the CJI, Governor, and Chief Justice of the High Court in question.
  • Furthermore, CJIs serve until the age of 65, whereas High Court judges retire at the age of 62.

CJI's removal

  • A Supreme Court Judge may be removed only by an order of the President issued after an address by each House of Parliament supported by a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting.
  • The address was presented to the President in the same session for removal on one of two grounds: proven misbehavior or incapacity.

What is the process for recommending and appointing judges?

  • In the appointment of judges, the more than two-decade-old collegium system is used, with five senior-most Supreme Court and High Court judges serving.
  • The term "collegium" is not mentioned in the constitution, which only mentions presidential consultation.
  • The Intelligence Bureau (IB) conducts a background investigation on the names first proposed for appointment by the collegium.

While the government may object, the collegium will usually prevail.

  • After the collegium's recommendations are finalized and received from the CJI, the Law Minister will forward them to the Prime Minister, who will advise the President on the appointment.

Criticism of the collegium system

  • The main problem with the collegium system is its lack of transparency.
  • The Law Commission of India's 230th report, submitted in 2009, raised the possibility of nepotism.
  • A person who has a close relative or well-wisher who is or has been a judge in the higher courts, a senior advocate, or a political higher-up has a better chance of being promoted.
  • It is not necessary for such a person to be competent, as less competent individuals are sometimes inducted.

Way forward

  • The National Judicial Appointments Commission was proposed as an alternative, with a body for making appointments consisting of the CJI and two senior-most judges, the law minister, and two "eminent" persons chosen by a panel consisting of the Prime Minister, the CJI, and the leader of the largest Opposition party in the Lok Sabha.
  • While the bill was passed by Parliament, it was ultimately overturned by the Supreme Court in 2015.
  • A new alternative with Supreme Court and Government’s proactive cooperation is required to make the appointment more transparent and able to make the judicial system more efficient.

Read Also: Post-retirement Allowances to Supreme Court Judges

Source: The Indian Express


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