Appointment of the Chief Justice of India (CJI): With Chief Justice B. R. Gavai retiring, Justice Surya Kant will take oath as the 53rd Chief Justice of India on November 24. His tenure, lasting till February 9, 2027, will be relatively long and is expected to involve significant constitutional, cyber, criminal justice, and electoral matters.

This topic is extremely important for UPSC Polity, especially because questions have previously been asked on judicial appointments, NJAC, and judicial independence.

Why is this in the news?

Justice Surya Kant’s elevation as the next CJI highlights the constitutional provisions and established conventions surrounding the appointment of India’s top judge. For UPSC aspirants, it is crucial to understand the Articles of the Constitution, the Memorandum of Procedure (MoP), and the Three Judges Cases, which together shape the appointment process.

Key Constitutional Provisions for Appointment of the CJI

1. Article 124(1) – Composition of the Supreme Court

It states that the Supreme Court of India shall consist of a Chief Justice of India and other judges as prescribed.

2. Article 124(2) – Appointment of Supreme Court Judges

• Judges are appointed by the President of India.
• The President must consult judges of the Supreme Court and High Courts as deemed necessary.
• For appointing judges other than the CJI, the Chief Justice of India must always be consulted.
• Judges hold office until 65 years of age.

3. No specific procedure in the Constitution

The Constitution does not explicitly define the process of appointing the CJI. The method evolved through conventions and later through the Memorandum of Procedure (MoP).

Convention for Appointment of the CJI

Seniority Principle

Traditionally, the senior-most judge of the Supreme Court (based on their tenure in the SC) is appointed as the CJI.

This convention has been formalized in the Memorandum of Procedure for Appointment of Supreme Court Judges (MoP).

Memorandum of Procedure (MoP): How the CJI is Selected

1. Senior-most judge to be considered

The MoP states:

“The 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.”

2. When does the process begin?

About one month before the retirement of the incumbent CJI.

Example:
Outgoing CJI B. R. Gavai recommended Justice Surya Kant on October 27.

3. Steps in the Appointment Process

1. The Law Minister seeks the recommendation of the outgoing CJI.
2. The CJI recommends the senior-most judge.
3. The recommendation is forwarded to the Prime Minister.
4. The PM advises the President, who formally appoints the next CJI.

Although the final decision lies with the government, the convention is to follow the CJI’s recommendation.

Three Judges Cases – Evolution of the Collegium System

The collegium system—which governs judicial appointments—emerged through three landmark Supreme Court judgments known as the Three Judges Cases.

First Judges Case (1981): SP Gupta vs Union of India

• A seven-judge bench held that “consultation” in Articles 124 & 217 does not mean concurrence.
• This gave primacy to the Executive in judicial appointments.
• Proposals for appointment to High Courts could originate from any constitutional authority in Article 217, not just the High Court Chief Justice.
• Result: Executive dominance for 12 years.

Second Judges Case (1993): Supreme Court Advocates-on-Record Association vs Union of India

• A nine-judge bench overturned the 1981 judgment.
• It established the Collegium System.
• The CJI would decide appointments in consultation with two senior-most judges of the Supreme Court.
• Judgment emphasized judicial primacy to ensure independence of the judiciary.

(The Third Judges Case of 1998—usually included in this topic—expanded the collegium to five members.)

Beyond the Nugget: National Judicial Appointments Commission (NJAC)

In 2014, Parliament passed the NJAC Act to replace the Collegium System with a commission.
However, in 2015, the Supreme Court struck down the NJAC as unconstitutional, citing violation of judicial independence – a point directly asked in UPSC Mains 2017.

Conclusion

The appointment of the Chief Justice of India is a blend of constitutional provisions, conventions, and judicial interpretations. For UPSC aspirants, understanding Articles 124, the MoP, and the Three Judges Cases is crucial for grasping how judicial appointments work and how the judiciary maintains its independence.