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Appointment of CJI

29 Aug 2022 Appointment of CJI

Posted at 11:20h in Daily current-affairs by
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News: Appointment of Justice Ramana as 49th CJI  and successor of Justice UU Lalit.

GS Paper 2: Structure, Organization and Functioning of the Judiciary; Appointment to various Constitutional Posts.

Who appoints the Chief Justice of India (CJI)?

  • The Chief Justice of India and the other judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Indian Constitution. 
  • Article 124 mentioned  that appointment by the President is to be done “after consultation” with judges of the Supreme Court, as the President may “deem necessary”.
  • Article 217,which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned.
  • The tenure of a CJI is until they attain the age of 65 years, while High Court judges retire at 62 years.

Who can become the Chief Justice of India?

Apart from being an Indian citizen, the person must 

  • (a) have been for at least five years a Judge of a High Court or of two or more such Courts in succession or
  •  (b) have been for at least ten years an advocate of a High Court or of two or more such Courts in succession, or
  •  (c) be, in the opinion of the President, a distinguished jurist.

What is the system followed for recommending and appointing judges?

  • While appointment of judges, the collegium system is followed, the Collegium system consists of five senior most judges of the Supreme Court and the High Courts. 
  • The government gets a background inquiry done by the Intelligence Bureau (IB) at times from the names first suggested for appointment by the collegium. While the government can also raise objections, usually the collegium’s will prevails. 
  • However, it is to be noted that the term “collegium” is not mentioned in the constitution, which only speaks of consultation by the President.
  •  In the last few years, the common understanding was that the independence of the judiciary from the executive was to be guarded in matters of appointments.
  • Usual convention is that  the senior most judge of the court after the chief justice (in terms of the years served) is recommended as the successor. This convention was memorably discarded by former Prime Minister Indira Gandhi, who appointed Justice AN Ray as CJI in 1973 over his seniors for a CJI more favorable to her regime.

What are the  government’s Memorandum of procedure for the appointment of Supreme Court Judges?

  • According to the government’s Memorandum of procedure for the appointment of Supreme Court Judges, seniority is to be the norm. It says the Union Minister of Law, Justice and Company Affairs seeks the recommendation of the outgoing Chief Justice of India for the appointment of the next CJI.
  • After the collegium’s recommendations are finalized and received from the CJI, the Law Minister will put up the recommendation to the Prime Minister who will advise the President on the matter of appointment.

What were  the various cases leading to the current system of appointment?

  • First Judges Case(1981): In this case it was held that recommendation made by the CJI to the President can be refused for “cogent reasons”. This meant the President or the executive would be in a more influential position in deciding appointments.
  • Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence” .It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case(1998): Now, the SC expanded the collegium in which decisions are to be taken by a majority of the five senior most judges.

What is the procedure for removal of CJI?

  • The constitution states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting”, with the address in the same session presented to the President for removal on one of the two grounds – proved misbehavior or incapacity.
  • While the Constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).

What are the various steps for removal of judges from office?

The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  The Act sets out the following steps for removal from office:

  • Under the Act, an impeachment motion may originate in either House of Parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha may give a signed notice to the Speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to the Chairman.  The Speaker or Chairman may consult individuals and examine relevant material related to the notice.  Based on this, he or she may decide to either admit the motion or refuse to admit it.
  • If the motion is admitted, the Speaker or Chairman (who receives it) will constitute a three-member committee to investigate the complaint. It will comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court; and (iii) a distinguished jurist.  The committee will frame charges based on which the investigation will be conducted.  A copy of the charges will be forwarded to the judge who can present a written defence.
  • After concluding its investigation, the Committee will submit its report to the Speaker or Chairman, who will then lay the report before the relevant House of Parliament. If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated.
  • The motion for removal is required to be adopted by each House of Parliament by: (i) a majority of the total membership of that House; and (ii) a majority of at least two-thirds of the members of that House present and voting. If the motion is adopted by this special  majority, the motion will be sent to the other House for adoption.
  • Once the motion is adopted in both Houses, it is sent to the President, will issue an order for the removal of the judge.

Sources: Indian Express, PRS, The Wire

Source Link:

1.Indian Express: https://bit.ly/3RRRiCs

2.PRS Legislative Research: https://bit.ly/3RuwfFX

3.The Wire: https://bit.ly/3TZgWXu

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