Forty-eight men have been appointed Chief Justice of India since 1950. With two exceptions, they have all been the senior-most judges of the Supreme Court of their time. How did ‘seniority’ become the sole criterion to appoint the CJI? The Constitution does not state, in its text, that this should be so.
While questions over the appointment of SC and HC judges occupied a lot of the Constituent Assembly’s time, the eventual shape of Article 124, which provides for the appointment of judges to the Supreme Court, is straightforward. It just provides for the minimum criteria for someone to be appointed a judge of the Supreme Court and says nothing on who ought to be appointed the CJI. So how did this (almost) hard and fast rule come into being?
For that, we have to go back to the time when the very first CJI, HJ Kania, passed away in his sleep in 1951. Kania was one of the first seven judges of the SC and had previously served in the Bombay HC. Of those seven judges, he had served the longest as a High Court judge and had previously been in the Federal Court of India, the predecessor of the Supreme Court. Faced with the untimely death of the first CJI, Prime Minister Jawaharlal Nehru and Attorney General of India MC Setalvad hoped to appoint the then Chief Justice of the Bombay HC, MC Chagla, as the CJI.
Chagla was a fantastic choice. Anyone who has read his judgements on any subject would be struck by his clarity of thought, deep knowledge and simplicity in writing. He would have been a great CJI. Nehru and Setalvad had spoken to Chagla and told him to prepare to move to Delhi. Except, it didn’t happen.
Nehru faced resistance from an unexpected quarter - all six remaining SC judges threatened to resign if Chagla was made CJI. They insisted that the CJI had to be appointed on the basis of seniority alone, meaning that the senior-most judge, Justice Patanjali Shastri, had to be appointed CJI.
Here’s the thing though -- the ‘rule’ was entirely made up on the spot. As scholar Abhinav Chandrachud has pointed out, there’s no evidence of any practice prior to 1951 showing that seniority was even a factor in the appointment of Chief Justices of HCs or the Federal Court. The simple justification one can offer was self-interest -- Shastri and his successor, MC Mahajan, would have never become CJIs had Kania survived till the age of 65. They didn’t want to let go of the opportunity. But that doesn’t answer why the other four judges went along with it.
One could say that the judges stood up for the independence of the judiciary. Even as it was already facing criticism for being reactionary and opposed to social justice, the judges wanted to show that they were only adhering to the law and the Constitution in their own way. Whatever it was, the argument that it promoted independence of the judiciary struck a chord, and Nehru chose to follow the ‘rule’ for the rest of his tenure as PM. His daughter, though, was responsible for the two exceptions.
Indira Gandhi’s tenure saw the only two instances of the ‘rule’ being overruled -- in 1974 and 1976. On both occasions, judges who had ruled against her government were “superseded”, and judges who had favoured it were appointed. The superseded judges (Justices Shelat, Grover and Hegde, and then Justice Khanna) immediately resigned in protest. Whatever else they may have lost by resigning, their reputations only stood enhanced for having stood up for the institution.
Such was the moral force of their action that no government has since, irrespective of its parliamentary majority, attempted to change the seniority rule. A constitutional convention has been created on this matter not because of the say so of one or two people but because of the moral force of the argument and the sacrifice made by those willing to stand up for it.
Whatever the purpose of the seniority convention, it does not by itself guarantee independence of the CJI, as we now know. Creating a truly independent judiciary is an ongoing project but we wouldn’t have gotten this far without adhering to some healthy conventions and practices.
Is this the ideal way to appoint the CJI? Probably not. But to paraphrase Winston Churchill’s quote on democracy, it is the worst way of appointing the CJI, except for all the other ways of doing it.
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