Challenging the Appointment of the Chief Justice of India: A New Norm

Swearing in ceremony of Justice D.Y. Chandrachud as the Chief Justice of India

Last week, Justice D.Y. Chandrachud took oath as the 50th Chief Justice of India. (‘CJI’) The same week, the Delhi High Court dismissed a petition questioning Justice Chandrachud’s appointment as the Chief Justice and seeking a stay on his oath ceremony. A week before that the Supreme Court had dismissed a similar petition strongly remarking ‘we find the entire petition to be misconceived’.

In the last few years, challenging the appointment of the CJI has become a norm. Justice Chandrachud’s predecessors Justice Gogoi, Justice Mishra and Justice Khehar have all been a victim to this norm. In this article, I highlight these past incidents and argue that they are frivolous attempts to gain publicity and need to be curbed. The judiciary needs to adopt stern measures that deter such petitions.

A. The Past Incidents:

The first instance wherein the appointment of a CJI was challenged, was arguably in the case of Justice A.N. Ray. Justice Ray was appointed as the Chief Justice in breach of the long-standing norm of seniority. There is no provision in the Constitution regarding the appointment of the Chief Justice of India. Since the Court’s inception, the senior most Judge has been appointed as the Chief Justice of India, which made it a practiced convention. The government has departed from this convention twice, one of which was during the appointment of Justice Ray.

On 24 April 1973, the Court delivered its judgment in the case of Kesavananda Bharti v. State of Kerala, wherein a bench of 13 Judges (split 7:6) held that although the parliament had the power to amend any part of the Constitution, it could not amend the basic features of the Constitution. The judgment was seen by Prime Minister Indira Gandhi as her government’s defeat and in response, she decided to break the seniority convention. 24th April was the last working day of CJI Sikri and as per the seniority norm, the next Chief Justice would have been Justice Shelat. However, the government decided to supersede Justice Shelat and his two successors Justice Hegde (second in seniority) and Grover (third in seniority), and appointed Justice Ray (fourth in seniority) as the CJI.

This was arguably a punishment for their judgments against the government in Kesavananda Bharti. All the three superseded Judges resigned in response. (Read more here)

Justice Ray was picked as he was seen as a government friendly Judge and the government believed that he could bring an end to the confrontation between the Judiciary and the Government. Law Minister Gokhale told the Lok Sabha that the Government had accepted the recommendations of the Law Commission made in the year 1960 that in the appointment of Chief Justice seniority should not be the sole basis since the Chief Justice should not only be a Judge of experience and ability but also a competent administrator. Gokhale also said that the appointment of Justice A.N. Ray had been made to “ensure that a machinery is provided to the Supreme Court where there is a certain degree of stability required in order that the law of the land may be settled. In order that there should be no uncertainty, we will have a Supreme Court which will know its mind and give a clear verdict so that we know what the law of the land is.” (quotes taken from P.L. Lakhanpal v. A.N. Ray, AIR 1975 Del 66)

Justice Ray’s appointment as the CJI was challenged before the Delhi High Court (P.L. Lakhanpal v. A.N. Ray, AIR 1975 Del 66). The petition contended that the appointment was made in violation of Article 124(2) as the mandatory consultation with the Chief Justice of India before appointing his successor was not taken. The petitioner prayed for a writ of quo warranto which seeks to question whether someone has a legal right to hold the public office that s/he is occupying. The petition was opposed by the Attorney General who raised a technical objection. He argued that granting this writ would be futile in light of the resignation of Justice Shelat, Hegde and Grover who were senior to Justice Ray. Post their resignation, Ray is the senior most Judge and hence, he can be re-appointed as the CJI in conformity with the seniority convention. The Court agreed with this argument and dismissed the petition.

Interestingly, the Court observed that the government could not have used this argument had the three Judges not resigned. One can only wonder what the outcome of this case could have been if the Judges had refused to resign. Would Justice Ray’s appointment be held unconstitutional?

Justice Ray’s appointment was an exceptional situation wherein the CJI’s appointment was indeed questionable and arguably, against the settled law. At the time, challenging the appointment of a CJI before a Court was an exception and not the norm. However, as of late, it seems to have become a norm.

In 2016, a petition was filed in the Supreme Court seeking a writ of quo warranto against the appointment of Justice J.S. Khehar as the 44th CJI (National Lawyers’ Campaign for Judicial Transparency and Reforms and Others v. Hon’ble Shri Justice J.S. Khehar and Others, W.P. (C) 43118/2016). It argued that Justice Khehar had a conflict of interest while he decided the National Judicial Appointment Commission case wherein the Supreme Court struck down the Constitutional Amendment creating the National Judicial Appointment Commission (‘NJAC’) which would have been responsible for appointing Judges. It was argued that since he was going to be the CJI in future and the NJAC affected the CJI’s powers, he should not have heard the case. The Court dismissed the case stating it had no constitutional foundation or basis.

In 2017, another petition was filed in the Supreme Court challenging the appointment of Justice Dipak Mishra as the CJI (the successor to Justice Khehar). The Court dismissed the petition terming it politically motivated and a publicity stunt. A petition challenging the appointment of Justice Mishra’s successor i.e., Justice Gogoi was also dismissed on grounds of lack of merit.

B. Need for Stern Measures:

Earlier this year, a bench of the Delhi High Court had remarkedThis is a trend in Delhi that you walk on the road, look left and right and file a PIL.” PILs against the appointment of CJI’s are one such category of PILs. Unfortunately, not only are these PILs filed but their numbers are rising. In my opinion, the reason behind it is the judicial time the Court devotes to them.

I have previously written about the practice of Courts accepting PILs filed by serial litigants on policy issues which it shouldn’t entertain. If the Court continues to hear these petitions even if briefly, it sends out a message to the public that such petitions are welcome. Instead, the Court should severely reprimand the petitioners who file frivolous petitions that waste judicial time. In fact, the Court in the landmark PIL case of Balwant Singh Chaufal had held, “The Court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.” The Court needs to implement its own judgment in letter and spirit.

Thankfully, if the recent trend is an indicator the Court seems to be adopting this path. In a recent judgment, the Court deprecated the trend of mushrooming of PILs. It observed, “In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there is no public interest involved at all. The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such so-called public interest litigations are nipped in the bud so that the development activities in the larger public interest are not stalled.”  (Ardhendu Kumar Das v. State of Odisha, C.A. 4515 of 2022) Similarly, the Court imposed a cost on the petitioner for filing the frivolous case against Justice Mishra and Chandrachud, respectively.

I believe the Court needs to continue on this path and reprimand frivolous litigants. There is a dire need of creating deterrence when it comes to PILs (including ones challenging the appointment of CJIs) so that only genuine PILs are filed before the Court. Once in a while, we do see the Court coming down heavily on frivolous petitioners harshly, however, those instances are the exception which must become the norm.

Concluding Remarks:

The petition against Chandrachud is nothing but an attempt to tarnish and taint his reputation. It makes egregious allegations against the Judge and other constitutional functionaries. At best, the petitioner does not agree with the ideological views of the Judge but that alone is no ground to challenge his appointment. Unfortunately, the mere filing of such petitions triggers a debate on social media and WhatsApp groups, where users consider mere filing of a complaint against a Judge as a stamp on her/his character. The footnotes of history will always record that a petition challenging Justice Chandrachud’s appointment as CJI was filed and very few will remember that the petition was dismissed with costs.

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