Appointment of Chief Justice of India (Seniority Convention)

CJI appointment convention refers to the settled practice by which the senior-most Judge of the Supreme Court is appointed as the next Chief Justice of India, a norm developed outside the bare text of the Constitution and reinforced through decades of judicial pronouncements.

Constitutional Basis for Appointment

Article 124 establishes the Supreme Court of India, consisting of the Chief Justice of India and, until Parliament prescribes a larger number, a specified number of other Judges (originally seven, later raised in stages). Every Judge of the Supreme Court, including the Chief Justice, is appointed by the President by warrant under the President's hand and seal. The Constitution itself does not spell out seniority as the deciding factor for who becomes Chief Justice — that has developed as a convention over time, though it was tested and departed from on more than one occasion in independent India's history before becoming firmly settled through judicial intervention.

Evolution Through the Judges Cases

The process for appointing judges — and the President's obligations when consulting the Chief Justice — was substantially reshaped through a sequence of Supreme Court decisions generally referred to as the Judges Cases.

• Second Judges Case (1993): The Supreme Court reversed the earlier understanding of what "consultation" with the Chief Justice meant for judicial appointments, holding that the Chief Justice's advice is effectively binding on the President. The Court further required that the Chief Justice consult the two senior-most colleagues before tendering such advice.
• Third Judges Case (1998): Delivered in response to a Presidential Reference under Article 143 on doubts about the consultation process established in 1993, the Supreme Court held that meaningful consultation requires a plurality of judges — a collegium of the four senior-most Supreme Court Judges besides the Chief Justice. It further held that the Chief Justice cannot send forward a recommendation if two of the consulted judges give an adverse opinion.

These decisions collectively established what is known as the collegium system, under which the Chief Justice of India and senior Judges play the decisive role in recommending appointments, including of a successor Chief Justice, rather than the executive making the choice independently.

The National Judicial Appointments Commission Episode

Parliament attempted to replace the collegium-based process with a different mechanism through the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014. These inserted new Articles 124A, 124B, and 124C, creating a National Judicial Appointments Commission (NJAC) consisting of the Chief Justice of India as ex officio chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister in charge of Law and Justice as an ex officio member, and two eminent persons nominated by a committee of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition. The NJAC was intended to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, and Chief Justices and Judges of High Courts.

However, a five-judge bench of the Supreme Court in the Supreme Court Advocates-on-Record Association case (2015) declared the Ninety-ninth Amendment and the NJAC Act unconstitutional, holding that they violated the independence of the judiciary and the separation of powers, both regarded as core features of the Constitution's basic structure. This restored the pre-existing collegium-based process, within which the seniority convention for the office of Chief Justice continues to operate.

How the Seniority Convention Operates

Under the settled practice that has emerged, the senior-most sitting Judge of the Supreme Court is recommended for appointment as the next Chief Justice of India when a vacancy arises, ordinarily upon the retirement of the incumbent. This convention provides predictability and reduces scope for the executive to influence the choice of Chief Justice through discretionary selection among Judges, reinforcing judicial independence at the level of the Court's own leadership.

Table: Key Milestones

UPSC Relevance

Prelims

• The Chief Justice of India is appointed by the President by warrant under the President's hand and seal, under Article 124.
• The NJAC, created by the Ninety-ninth Amendment (2014), was struck down by the Supreme Court in 2015.

Mains

• Trace the evolution of the process for appointment of the Chief Justice of India through the Judges Cases.
• Examine why the Supreme Court struck down the National Judicial Appointments Commission, and discuss its implications for the seniority convention.

FAQ

Q. Is the seniority convention for appointing the Chief Justice of India written into the Constitution? A. No. The Constitution does not explicitly mandate seniority; it developed as a convention, later reinforced through Supreme Court decisions in the Judges Cases.

Q. What did the Second Judges Case (1993) decide? A. It held that the Chief Justice's advice on judicial appointments is effectively binding on the President and required consultation with the two senior-most colleagues.

Q. What is the National Judicial Appointments Commission (NJAC)? A. It was a body created by the Ninety-ninth Constitutional Amendment (2014) to recommend judicial appointments, replacing the collegium; it was struck down as unconstitutional in 2015.

Q. Why was the NJAC declared unconstitutional? A. A five-judge bench held that it violated the independence of the judiciary and the separation of powers, both considered basic features of the Constitution.

Q. Who currently plays the decisive role in appointing the Chief Justice of India? A. The collegium system, led by the Chief Justice of India along with senior Supreme Court Judges, plays the decisive role, following the seniority convention for the office of Chief Justice.

Quick Revision

• Article 124 — Chief Justice and other Judges appointed by President by warrant.
• Seniority convention for CJI is not in the constitutional text; developed through practice and case law.
• Second Judges Case (1993) — CJI's advice effectively binding; collegium concept introduced.
• Third Judges Case (1998) — collegium expanded to CJI plus four senior-most Judges.
• Ninety-ninth Amendment (2014) created NJAC; struck down in 2015 (Supreme Court Advocates-on-Record Association case).
• Collegium system, following seniority, remains the operative process.

Sources

• The Constitution of India, Article 124 — https://legislative.gov.in/constitution-of-india/
• Supreme Court Advocates-on-Record Association v. Union of India (2015) — Supreme Court of India
• In Re: Presidential Reference (1998), Special Reference No. 1 of 1998 — Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.