Choosing the Chief Justice - The Hindu

5th May 2014 - Link

The issue of having a fixed tenure for the Chief Justice of India arises owing to the short tenures that Chief Justices have on average.

• In the last 20 years, there have been 16 Chief Justices of India.
• Only four have had tenures of more than two years.
• Eight have served for less than a year with one having served for less than a month.

Reason: for the limited length of such tenures

At the time a vacancy in the Chief Justice’s post arises, the senior-most judge in the Supreme Court is appointed irrespective of the length of tenure remaining before his retirement.

Consequence:

Excessively frequent transitions lead to systemic inefficiencies, increase incoherence in strategies to deal with ongoing problems and hinder the stability of leadership that a large and widely respected institution requires.

Why does such a convention exist?

Two Reasons —

• The legitimate expectations of future Chief Justices to hold such offices would be taken away in the absence of its strict application.
• Any other method would be subjective with considerable potential for the independence of the judiciary being adversely affected.

These two points are discussed in detail below

No legitimate expectation

No judge of the Supreme Court can have a “legitimate expectation” to be Chief Justice of India.

The protection of legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words, personal benefit must give way to public interest and the doctrine of legitimate expectation would not be invoked which could block public interest for private benefit” — ( Monnet Ispat and Energy Ltd. v. Union of India And Ors. , (2012)11SCC1)- A recent judgement by justice RM Lodha.

Overriding public interest in this case lies in the need for stable leadership of the Indian judiciary and its attendant public benefits.

Future judges becoming Chief Justice is on the other hand a matter of great personal honor and no more.

Conclusion:

The “legitimate expectations” of Chief Justice-ship that individual judges may harbor cannot provide a principled ground against fixed tenure and modified application of the seniority convention.

Objectivity by Seniority

Age functions as a de facto criterion for appointment of judges to the Supreme Court( no judge since 1979 having been appointed before the age of 55, a high rate of turnover of Chief Justices is inevitable.)

Reason:

To stick to seniority despite this can only be explained by the objectivity that seniority is perceived to lend, thereby obviating threats to judicial independence.

Such objectivity is overstated for two reasons: 

First:

• Seniority is determined not simply by age, but rather by the date of appointment to the Supreme Court.
• The process of appointment by a collegium led by the Chief Justice of India is opaque, functioning without any transparency or accountability for decisions taken.
• Certain appointments have raised wide speculation in legal circles for their timing with cases of unexplained expedition or delay, regarding which neither can information be sought nor review requested.
• It is thus within the realm of possibility that the objectivity that the seniority convention engenders is often founded on a ruse.

Second:

• Rampant corruption in public life ==> accountability discourse , as a result a premium has been placed on objective criteria in decision-making.
• Independent commissions are regularly demanded since they are expected to decide more objectively than ministries.
• Objectivity today has become a byword for fairness and more worryingly, any decision not on objective criteria often automatically leads to claims of corruption or hanky-panky.
• This disincentives good decision-making and creates perverse results, worse than the malaise it set out to cure.

Competence, not Seniority

The appointment of the Chief Justice of India provides an ideal opportunity to reverse this trend.

Judicial Appointments Commission (JAC): 

A carefully constituted commission is a body which should be empowered to select the person, who in its opinion is the most competent to deal with the administrative, judicial and leadership tasks expected of a Chief Justice of India.

It is a shame numerous Chief Justices that India has had for extremely short duration's, could not serve for longer; or several others seen widely as deserving of the office never served at all

JAC provides an opportunity to prevent such unfortunate incidents from recurring by dispensing with the seniority convention

It would demonstrate that as a mature polity, India is prepared to trust decisions taken by accountable public authorities following well-established and transparent processes.