Convention breached just twice: How is the Chief Justice of India appointed

There has been speculation galore whether Justice Ranjan Gogoi will be appointed as the next Chief Justice of India. Union Law Minister, Ravi Shankar Prasad said, when the incumbent names the senior-most judge of the Supreme Court as his successor as per convention, the executive will take a call.

The convention always has been that the Chief Justice of India recommends the name of his successor and the executive then approves it. The senior most puisne of the Supreme Court has always been appointed as the CJI. However there was an exception on two occasions.

The fall out of the Keshavananda Bharati case was the appointment Justice A N Ray as the CJI. He superseded three senior most judges of the Supreme Court. The second time the breach of convention took place was during the Emergency period. Justice M H Beg was appointed as the CJI on January 29 1977 by superseding Justice H R Khanna.

The convention was almost breached during 1951 when Jawaharlal Nehru was the Primem Minister.

The first CJI of India, Harilal Kania died in office on November 6 1951. Nehru wanted to supersede Justice Patanjali Sastri, who was the senior most judge in the Supreme Court. However he faced stiff opposition and was told that if he went ahead with his decision, all six judges of the Supreme Court would resign. Nehru was forced to change his mind.

What if CJI does not recommend the name of Justice Gogoi:

Amidst fears that the convention may be breached, the question is what if Justice Misra does not recommend the name of Justice Gogoi. After all Gogoi was part of the famed presser, which he addressed with three other judges in which certain allegations on the allocation of cases against the CJI were made.

The decision on whether to recommend the name of Justice Gogoi entirely is entirely up to Justice Misra. Even if he does recommend the name of Justice Gogoi, the executive can take a different call on the subject.

According to the memorandum of procedure, a document which guides the appointment and transfer of judges of the apex court and the 24 high courts, "Appointment to the office of the Chief Justice of India should be of the senior-most judge of the Supreme Court considered fit to hold the office."

"Whenever there is any doubt about the fitness of the senior-most judge to hold the office of the Chief Justice of India, consultation with other judges ... would be made for appointment of the next Chief Justice of India," the document states.

This procedure would come into motion if the CJI does not make any recommendation. Justice Misra is due to retire on October 2 2018 and days before that the Law Minister would seek his recommendation. Justice Misra can either recommend a name or not do so at all.

Article 124 of the Constitution of India provides for the manner of appointing judges to the Supreme Court. However there is no specific provision for the appointment of a Chief Justice. Over the years, a convention of appointing the senior most judge is what has been followed.

On the removal of a Chief Justice, the Constitution lays down the rules under Article 124(4). Once appointed, the Chief Justice remains in the office until the age of 65 years. He can be removed only through a process of impeachment by Parliament as follows:

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 has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Interesting fact:

Before signing out here is an interesting fact about the longest and shortest serving Chief Justice of India. The longest serving Chief Justice of India is Justice Y V Chandrachud. He was the Chief Justice of India between February 22 1978 and July 11 1985. His tenure lasted, 2,696 days.

The shortest serving Chief Justice of India was Kamal Narain Singh. His tenure of 17 days lasted between November 25 1991 and December 12 1991.