Justice Sanjiv Khanna to be next CJI: How are Chief Justices of India appointed?

What is the process for appointing the CJI?

By convention, the seniormost justice of the SC (based connected years of acquisition arsenic a justice successful the apex court) becomes the CJI. This process has present been enactment down successful the ‘Memorandum of Procedure for the assignment of Supreme Court Judges’ (henceforth, referred to arsenic the MoP).

BASIS OF APPOINTMENT: The MoP says that the “appointment to the bureau of the Chief Justice of India should beryllium of the seniormost Judge of the Supreme Court considered acceptable to clasp the office”. Even earlier the MoP was agreed upon successful 1999, the seniormost justice of the Supreme Court aft the CJI was by normal elevated to the apical post.

HOW THE PROCESS BEGINS: According to the MOP, the assignment process begins erstwhile “The Union Minister of Law, Justice and Company Affairs would, astatine the due time, question the proposal of the outgoing Chief Justice of India for the assignment of the adjacent Chief Justice of India”. By convention, the “appropriate time” for the process to statesman is simply a period earlier the day of status of the incumbent CJI. CJI Chandrachud sent his missive of proposal to the Centre connected October 17.

CENTRAL GOVERNMENT APPROVAL: As per the process laid down successful the MoP, “after receipt of the proposal of the Chief Justice of India, the Union Minister of Law, Justice…will enactment up the proposal to the Prime Minister who volition counsel the President successful the substance of appointment”. Though the last connection connected appointing the adjacent CJI technically lies with the Centre, by normal the Centre tends to name whoever the presiding CJI recommends arsenic her successor.

Has determination ever been a departure from the normal of appointing the seniormost SC justice arsenic the CJI?

Yes. This normal was famously discarded by erstwhile Prime Minister Indira Gandhi, whose authorities recommended the assignment of Justice A N Ray arsenic CJI successful 1973, superseding 3 much elder judges, Justices J M Shelat, K S Hegde, and A N Grover.

Justice Ray was considered to beryllium much favourably disposed towards the Indira authorities than his much elder colleagues. His assignment was announced the time aft the Supreme Court pronounced a landmark bid successful the Kesavananda Bharati case, which laid down the “basic structure” doctrine. Justice Ray was portion of the number successful the 7-6 verdict of the 13-judge Bench.

Indira’s government, successful January 1977, erstwhile again ignored the normal by superseding Justice H R Khanna to name Justice M H Beg arsenic the CJI. Justice Khanna had been the lone dissenter successful the ADM Jabalpur vs Shiv Kant Shukla order, successful which the bulk comprising Justices A N Ray, P N Bhagwati, Y V Chandrachud, and M H Beg agreed with the authorities that cardinal rights including the close to beingness and liberty stood abrogated during a play of nationalist Emergency.

How did the MoP travel into existence?

Following the apex court’s decisions successful the First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998), a adjacent enactment process for the assignment of High Court and SC judges was enactment successful spot by establishing what we present cognize arsenic the Supreme Court Collegium. This Collegium comprises the seniormost judges of the SC, and the Centre is technically bound to judge its recommendations.

The MoP — archetypal drawn up successful 1999 — provides the process for assignment and obligations of the Centre, the SC, and the High Courts erstwhile it comes to the assignment process. This papers is important arsenic the Collegium strategy of appointing judges is simply a judicial innovation that is not mandated done legislation, oregon substance of the Constitution.

In 2015, the SC struck down the law amendment that brought successful the National Judicial Appointments Commission (NJAC). This would person allowed the Centre to person greater influences successful the process of recommending judges. Following this decision, the MoP was renegotiated successful 2016, though the authorities maintained until past twelvemonth that it was inactive being finalised.