- About the Chief Justice of India
- Power of CJI
- Eligibility to become a Supreme Court judge
- Selection procedure of Chief Justice of India
- What is the Collegium?
- About Supreme court of India
[RSTV In Depth] CJI & Powers
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- The 47th Chief Justice of India, Justice Sharad Arvind Bobde, sworn in recently as the next Chief Justice of India. The Indian President administered the oath procedure.
- Current CJI, Justice Gogoi, retired on November 17th, a day before Justice Bobde took oath. Justice Bobde is expected to retire from office on April 23rd, 2021.
About the Chief Justice of India (CJI)
- The Chief justice of India (CJI) is the head of the judiciary of India and the Supreme Court of India.
- Every supreme court judge, including CJI, are appointed by the President of India under the Article 124 (2)of the Constitution.
- However, the Constitution of India itself does not have any provision for criteria and procedure for appointing the CJI.
- The closest mention is in Article 126, which deals with the appointment of an acting CJI. In the absence of a constitutional provision, the procedure relies on custom and convention.
- The Indian Constitution gives the power of appointing judges to the President. The President can take advice on these appointments from the Union cabinet, judges of the Supreme Court and High Court’s and other people as he deems fit.
- The wages, allowances, leave and pension of the judges is determined by the Parliament and cannot be altered unless there is a financial emergency.
- The additional expenditure of perks of the judges is borne by the state but the CJI and judges are not allowed to continue practice in the courts after retirement.
Power of CJI
- Responsible for allocating cases and appointment of constitutional benches that deal with important matters, due to which he is often referred as the master of roster.
- Allocates all work to the other judges who are bound to refer the matter back to CJI in any case where they require it to be looked into by a larger bench of more judges.
- Swearing in of the President and Governors.
- Power to appoint court officials
- Assist the President for the appointment of judges in the Supreme Court and the High Courts.
- Advisory powers in which CJI can instruct and advise the government to work about certain issues.
- Discharges the role of the president if the office of President and vice-president suddenly becomes vacant in emergency situations.
- If there is a confusion about constitutional provisions, the only valid interpretation is the one given by the Supreme Court.
- Justice Bobde was chosen, after recommended by CJI Gogoi, in line with the rule of seniority.
Eligibility to become a Supreme Court judge
Eligibility criteria for CJI is same as any supreme court judge which are:
- Should be an Indian citizen.
- No minimum age criteria
- Should serve as a judge of one high court or more (continuously), for at least 5 years or the person should be an advocate in the High court or the Supreme court for at least 10 years Should be a distinguished jurist in the opinion of President.
Condition for removal
- Retirement on completion of age 65 years
- Grounds for removal are: Proven misbehavior, Incapacity
Selection procedure of Chief Justice of India
In 1993, a nine judge Supreme Court bench ruled that judge’s seniority must be considered for appointment of the CJI and that the CJI must be consulted for the appointment of other judges of the Supreme Court.
However, Seniority at the apex court is determined not by age, but by:
The date a judge was appointed to the Supreme Court.
If two judges are elevated to the Supreme Court on the same day,
- a) the one who was sworn in first as a judge will be given priority over another;
- b) if both were sworn in as judges on the same day, the one with more years of high court service will be given priority over another.
- c) an appointment from the supreme court bench is given high priority than the in seniority.
- When the incumbent CJI is about to retire, the Ministry of Law, Justice and Company affairsuse to seek the recommendation of the CJI to appoint the next CJI.
- After receiving the recommendation of the CJI, the Ministry of Law, Justice and Company affairs forward the issue to the Prime Minister who will further move the proposal to the President of Indiafor the final approval.
Key difference between selection of CJI and other supreme court judges
- In the selection of CJI, the government cannot send the recommendation of the CJI (or the collegium) back to them for reconsideration; while in the selection of other supreme court judges, the government can do so.
What is the Collegium?
- The right to appoint judges of the High Court and the Supreme Court lies for the committee of judges called the Collegium.
- The Chief Justice of the Supreme Court is the head of the committee and four other senior most Supreme Court judges are its members.
Functions of collegium
- Appointment and transfer of the judges of the High Court and the appointment of the Supreme Court judges.
- Promotion of High court judges to supreme court
Background of Collegium system
- From 1951 to 1973 the Supreme Court’s senior most judge has always been appointed as the Chief Justice of India.
- In 1973, when justice A N Ray was appointed CJI, his appointment superseded three other senior judges of the Supreme Court. The other senior judges were not considered for appointment because their judgment in the Kesavananda Bharati was not in favor of the government. This triggered widespread protests across India.
- Moreover, in 1977, after delivering his dissent in the ADM Jabalpur v. Shiv Kant Shukla (Habeas Corpus) case, CJI H R Khanna was superseded by Justice M. H. Beg, contrary to the convention of appointing the senior-most judge as the next CJI, despite him being the senior-most judge in the Supreme Court at the time. As a result of this, Khanna promptly resigned from the court.
Legislators who criticized this move of government, felt that the judiciary’s discretionary powers should reduce. This lead to the establishment of the Supreme Court’s Collegium system.
What are the Three judge’s cases?
- The genesis of the Collegium system is in three of Supreme Court judgments that are collectively known as the Three judge’s cases.
First Judges case (also known as S P Gupta case, 1981): In this case, it was decided that supreme court’s consultation in appoint judges are taken only for ‘consideration’ and are not binding. It declared that the primacy of the CJI’s recommendation to the President can be refused.
Second Judge case (1993): In this case, the decision taken in First Judge case was revered i.e., the supreme court’s consultation in the appointment of judges are binding. The collegium has the power to appoint and do transfer of judges. The collegium system was instituted in this case by the Supreme Court.
Third Judges case (1998): In this case, then President of India sought the opinion of the supreme court on the meaning of the word ‘consultation’ under the Article 124,217 and 222. As a result, supreme court orders that governor is above the legislature in the appointment of judges. As a reply, Supreme Court also laid down nine guidelines for the functioning of collegium.
These nine guidelines are:
- The term consultation requires consultation with a plurality of judges. The sole, individual opinion of the CJI does not constitute consultation.
- The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.
- Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.
- The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI.
- The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.
- Recommendations by the CJI without [such compliance] are not binding upon the government.
- The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts are not obtained.
- The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.
- The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court.
Increase in number of judges
- In 1956, the number of judges in supreme court were 8 (including CJI). In the same year, the Supreme Court (Number of Judges) Act, 1956 was enacted to provide for a maximum of 10 judges (excluding the CJI).
1960: Number of judges increased to 13 (including CJI)
1977: increased to 17 (including CJI)
1986: increased to 26 (including CJI)
2008: increased to 31 (including CJI)
2019: increased to 34 (including CJI)
About Supreme court of India
- As laid down in Chapter 4 of the Constitution, the Supreme Court of India is the guardian of the Constitution. It is also the custodian of the fundamental rights of the citizens.
- Supreme Court was established on the 26th of January 1950.
- Articles 124 to 147 state deal with the organization, independence, jurisdiction, powers and procedures of supreme court. For example, Article 129 deals with contempt of court while as per Article 131, supreme court has original jurisdiction in any dispute.
- From 1937 to 1950, the supreme court was located at Chamber of Princes of parliament house. In 1958, the supreme court moved to Delhi.
- India’s Supreme Court has more power in comparison to the Supreme Court of any other country given its nature and extent.
Power of supreme court
Original jurisdictions: Supreme Court has the right to hear the case first:
- If there is a dispute between the government of India and one or more states
- Between the government of India and any state or states on the one side and one or more states on the other side
- Between two or more states
Appellate jurisdictions: Enjoys constitutional, civil as well as criminal appeals.
Advisory jurisdictions (Article 143): Can give advice to the government as well as the president, if the matter is related to the interest of the public or if there arises a substantial question of law.
- Sole interpreter of Constitution
- Settle dispute between government and states or between states
- Act as the highest judicial forum and is the final court of the appeal in India
- Can withdraw cases pending before High courts
- Article 137 allows supreme court to review its own decision
- The Constitution provides a unified judicial system keeping the Supreme Court at its apex therefore the Supreme Court exercises enormous powers and functions.
- Given such enormous power of supreme court, CJI needs to advocated resilience and the readiness to accept and adapt to change as a key factor to discharge his/her duty.