Evolution Of Seniority Convention And Appointment Of Chief Justice Of India

II. THE SOURCE OF THE SENIORITY PRACTICE AND ITS ORIGINS

^[13] As per the said Section "the Chief Justice of any such High Court shall have Rank and Precedence before the other Judges of the same Court" however, Judges that had been transferred from the Supreme Court

[14] to the High Court would have a "higher Rank and Precedence" as compared to Judges who were not transferred from the Supreme Court. Except for this exception, all the Judges of each High Court had "Rank and Precedence" according to the "Seniority of their Appointments, unless otherwise provided in their patents"; thus, establishing a clear hierarchy based on seniority. However, the said principle of seniority had no application whilst appointing the Chief Justice of the concerned High Court. This is apparent from a reading of Section 7 of the 1861 Act which contemplates appointing "one of the judges of the same High Court" and not the "senior most judge" of the High Court in case the office of the Chief Justice is vacant due to the absence of a Chief Justice.

[15] Even the Government of India Act 1935, which established the Federal Court of India, does not contain such a provision. This is clear from a reading of Section 200(2) of the Government of India Act 1935 which states that a Judge of the Federal Court shall be appointed by "His Majesty".^[16] The said 1935 Act did not contain any provision on the appointment of the Chief Justice of India.

^[17] His research concluded that the Bombay, Madras and Calcutta High Courts did not follow the "seniority convention" and even the Federal Court of India did not follow the said practice.^[18] He did however find "weak evidence" to suggest that the said practice "was sparingly followed in some form only in two [High] courts: Allahabad and Patna."^[19] Though he did not make any "normative claims about the seniority convention,"

[20] he did state that "the seniority convention" was "an exception rather than a rule."^[21]

^[22] While there was considerable debate on the word "consultation", nowhere in the debate on the said Draft Article was there any discussion let alone reference to the seniority practice.^[23] Out of the several amendments that were proposed, two amendments that are of significance were the ones moved by Prof. Shibban Lal Saksena and Mr. B. Pocker Sahib because they dealt directly with the procedure for appointing of the Chief Justice of India.

[24] Prof Saksena had suggested that "the Chief Justice of the Supreme Court" be appointed by the President "subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both Houses of Parliament."^[25] On the other hand, Mr. Pocker Sahib had suggested "the Chief Justice of India" be appointed by the President "after consultation with the judges of the Supreme Court and the Chief Justices of the High Court in the States."

[26] The amendment moved by Prof. Saksena did find favour with members such as Pandit Thakur Das Bhargava who was of the opinion that such a method of appointment "would inspire much more confidence in the Chief Justice of the Supreme Court"^[27] However, Shri Biswanath Das found that the said amendment proposed by Prof. Saksena would "import a very dangerous principle."

[28] The comments of Shri Das on clause (2) of article 103 which provided for consultation with the Chief Justice of India "in the case of a judge other than the Chief Justice" are interesting because the learned member was of the view that there was no "reason or justification" for the retention of the said proviso since the Chief Justice "is a very responsible person" and there was "no reason why he should not be consulted

in the case of the appointment of the Chief Justice who is to be his successor."^[29] Both the amendments that were moved by Prof. Saksena and Mr. Pocker Sahib were eventually "negatived" but the proviso to Draft Article 103 remained and found its place in the final draft of the Constitution as a proviso to sub-Article 2 of Article 124. Therefore, from a reading of the Constituent Assembly debates, it is quite apparent that such seniority principle was not discussed because it never existed in pre-independent India but it appears that the outgoing Chief Justice was generally consulted before appointing the succeeding Chief Justice of the Court. This was evident when the Viceroy of India Lord Linlithgow, sent Sir Maurice Gywer a letter of apology dated 13

th November 1942 for committing "a serious error in procedure" by not consulting him as the outgoing Chief Justice as per the "memorandum of procedure" when Sir Patrick Spens was appointed as his successor in 1942.^[30]

^[31] Sir Patrik Spens was the last British Chief Justice of the Federal Court and resigned two days before independence.^[32] At the time of resignation, the other two puisne Judges of the Federal Court were Harilal J. Kania, who was appointed to the Federal Court on 20^th June 1946^[33] and Sir Syed Fazl Ali, who was appointed to the Federal Court almost a year later i.e. on 9

th June 1947.^[34] The resignation of Sir Patrik Spens gave way to appointment of the senior most puisne judge of the Federal Court, Harilal J. Kania J. two days later viz. on 15^th August 1947 as the First Indian Chief Justice of the Federal Court of a newly independent India.^[35] Thus laying the foundation for the practice of appointing the senior most judge as Chief Justice of the Federal Court and subsequently, the Supreme Court. During initial years of the working of the Constitution, it appears that attempts were made by the Nehru Government to appoint Judges other than the senior most Judge of the Supreme Court to the office of the Chief Justice of India. Granville Austin in his book on the working of the Indian Constitution while referring to Justice B.P. Sinha's autobiography

[36] states that B.P. Sinha "was told" that upon Kania's death, the Nehru Government had been inclined to appoint S.R. Das as Chief Justice over the then senior most judge at the time Patanjali Sastri, however, the "unwritten law" prevented this from happening. ^[37] After Sastri's retirement, there was also talk of B.K. Mukherjea or M.C. Chagla of the Bombay High Court being appointed as Chief Justice over the senior most Judge at the time M.C. Mahajan; however, it appears that Nehru "backed down" after the all the Judges of the Supreme Court collectively threatened to resign.^[38] Though the accuracy of these incidents are open to conjecture, they do indicate that on the Constitution coming into force, the seniority practice had begun to take its full effect, at least in the initial years of the Constitution. The first eight years of the Constitution and the Supreme Court saw as many as five Chief Justices being appointed in quick succession solely based on seniority.^[39] This prompted the Law Commission of India in its Fourteenth Report to comment on the Tenure of the Chief Justice and Method of Appointment.^[40] The Commission "bestowed anxious consideration" on the "practice till now for the senior most puisne judge to be promoted to be the Chief Justice on the occurrence of a vacancy" and stated that succession to the office of the Chief Justice of India could not be regulated by "mere seniority."^[41] The Commission was of the view that it was "necessary to set a healthy convention" on "special considerations" for appointment of the Chief Justice of India and the senior most puisne Judge should not as "a matter of course" be appointed as Chief Justice.^[42] H.M. Seervai however was of the view that the "convention was right" as it secured judicial independence, but he submitted that the convention should prescribe a minimum period of not less than one year.^[43]

III. THE MEANING OF A CONSTITUTIONAL CONVENTION AND ITS DISTINCTION FROM A PRACTICE

^[44] However, authorities on Constitutional Law such as Seervai have called the method of appointment a "convention."^[45]Granville Austin has described it as a "convention of promotion by seniority"^[46] and had even gone to the extent of calling it "an unwritten law"^[47]. While, Gadbois uses the same term used in the Fourteenth Law Commission Report and referrers to it as "a practice."^[48] It would be necessary to understand the meaning of the term "convention" and "conventions of the Constitution" or "Constitutional Conventions" and its distinction from a practice.

^[49] They supplement the legal rules of the constitution, define practices of the constitution and provide "the flesh which clothes the dry bones of the law."^[50] According to Hilaire Barnett, "A Constitutional Convention is a non-legal rule which imposes an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism; and that criticism will generally take the form of an accusation of 'unconstitutional conduct.'"^[51] Since they are "non-legal rules," they can only be recognized by Courts and the Courts do not have the jurisdiction to enforce these convention rules; therefore, there is no question of a breach of a convention since they are unenforceable.^[52]

^[53] They are "in short rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown"^[54] According to Dicey, Constitutional Conventions are mainly rules for governing exercise of "prerogative" which means the remaining portion of the Crown's original authority which can be exercised at the Crown's discretion.^[55] They consist of "customs, practices, maxims, or precepts which are not enforced or recognized by the Courts" and they do not make up a body of laws but of "constitutional or political ethics."^[56] Customs, practices, maxims or precepts are components or parts of Constitutional Conventions but independently they cannot be termed as Constitutional Conventions.

^[57]According to Barnett conventions are conceptually different from "habits or "practices" in the sense that these concepts do not prescribe or dictate "what ought to happen but are merely descriptive of what in fact does happen."^[58] A practice is "a usual or customary action or proceeding."^[59] It basically means that it the usual way of doing a particular thing in a particular way which due to past experience has become the correct way of doing something and unless there are "justifiable reasons" the practice must be adhered to.^[60] A practice is no more than an "emergent or potential convention and has not yet acquired the binding characteristic of a rule."^[61] A practice followed over a period of time evolves into a Convention.^[62] It is therefore misleading to refer to any existing constitutional practice as a convention.^[63] The distinction between a practice and a Constitutional Convention can be drawn on the basis of the concept of obligation and rule. While a practice imposes a weak obligation, a constitutional convention imposes an absolute obligation.^[64] Further, a justification is required to deviate from a practice, however, if a Constitutional Convention is not followed, a charge of unconstitutional conduct can be levied.^[65]

IV. THE EVOLUTION OF THE SENIORITY PRACTICE INTO A CONSTITUTIONAL CONVENTION

^[66] This practice was followed consistently over the next ten years till 1964 when a "justifiable deviation" occurred in the practice due to the illness of S. Jaffer Imam J.^[67] Imam J. who was the second senior most judge after Bhuvneshwar Prasad Sinha C.J., then Chief Justice of India was superseded by the third senior most Judge namely P.B. Gajendragadkar J. who became Chief Justice of India on 1^st February 1964.^[68] This "justifiable deviation" from the practice was described by Granville Austin as a "genuine supersession" as the "action arose no controversy because Imam had an illness that affected his mind."^[69]

^[70] The Petitioners had in the said case prayed for a writ of quo-warranto to challenge the appointment of A.N. Ray J. as Chief Justice of India.^[71] One of the grounds of challenge was that the appointment of A.N. Ray J. as Chief Justice of India violated Article 124(2) of the Constitution as "the rule of seniority which inheres" Article 124 was not followed.^[72] The Petitioners had also contended that the "rule of seniority" is a "rule of law" and is inherent in Article 124 of the Constitution.^[73] The Petitioners equated the "rule of seniority" with "a rule of law" having binding effect. The Respondents raised three preliminary objections, one of them being that since a writ of quo-warranto is a writ of technical nature, it would be futile to grant the writ because as a result of the resignations of Shelat J., Hegde J. and Grover J., A.N. Ray J. had become the senior-most puisne Judge and not only could Ray J. be re-appointed but he would be entitled to be re-appointed as Chief Justice of India.^[74] The Delhi High Court found favour in the Respondents' argument and eventually upheld the contention of Respondents' that issuing a writ of quo-warranto would be futile.^[75] However, the Court did not adjudicate upon or directly deal with the Petitioners' contention that "the rule of seniority is a rule of law."

^[76]

^[77]( hereinafter referred to as the "Judges case"). In his judgment, Desai J. had recorded the submission of Mr. H.M. Seervai who had in the course of his argument on Article 124(2) suggested "that a constitutional convention must be read that the senior most amongst the puisne Judges of the Supreme Court should as a rule be appointed as Chief Justice of India except when he is physically unfit to shoulder the responsibilities" so that the process of consultation cannot be obviated by the President acting at the behest of the Prime Minister and the Council of Ministers. In this context, Mr. Seervai referred to Article 126 of the Constitution of India which permitted the President to appoint even the junior most Judge of the Supreme Court as Chief Justice. Desai J. however, did not conclusively opine the on issue and kept "the question of construction" of Article 124 in this manner open.^[78]

^[79](hereinafter referred to as the "Second Judges Case"). In the majority judgment of J.S. Verma J., the Court stated, "Apart from the two well-known departures, appointments to the office of the Chief Justice of India have, by convention, been of the senior most Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India."^[80] (Italics and emphasis supplied). Verma J. then went on to hold that the "provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the senior most Judge to hold the office, which alone may permit and justify a departure from the longstanding convention."^[81] Verma J. further stated, "There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary."^[82] Verma J. thereafter went onto to hold that the "Appointment to the office of the Chief Justice of India should be the senior most Judge of the Supreme Court considered fit to hold the office."^[83] (Italics supplied). Though the practice of appointing the senior most judge as Chief Justice has been recognized as a convention, the majority judgment delivered by Verma J. has added an additional criterion by using the expression "considered fit to hold office". This poses difficulty as it is not qualified with a certain aspect of fitness such as "physical" fitness thereby making the appointment process rather subjective. It would give wide discretion to either the President of India or even the outgoing Chief Justice of India who submits the proposal, to decide whether the senior most Judge of is "considered fit to hold the office" and if the senior most Judge is not considered fit, then consultation with other Judges will be initiated. It is submitted that once the senior most Judge has been considered fit to be a Judge of the Supreme Court of India, then there cannot be any doubt about his or her fitness to be appointed as Chief Justice of India except on the ground of proved misbehavior on incapacity in which case he or she can be removed by Parliament under Article 124(5) of the Constitution of India. The expression "considered fit to hold the office" defeats the very purpose of the seniority principle and would give an opportunity to the Government of the day to attempt to interfere in the process of appointing the senior most Judge as the Chief Justice of India. This is evident from a reading of Section 5^[84] of the National Judicial Appointments Commission Act, 2014. The entire Act was challenged and eventually struck down in 2015 by the five-Judge Bench of the Supreme Court in Supreme Court Advocates-on-record Association and another v. Union of India^[85] Sub-section 1 of Section 5 stated that the National Judicial Appointments Commission^[86] "shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold office:" The sub-section had intentionally omitted to use the word "doubt" or the words "if there is any doubt about the fitness of the senior most Judge" that had been used in the majority judgment in the Second Judges Case as well as in paragraph 2.1 of the Memorandum of Procedure of appointment of Supreme Court Judges^[87] prepared by the Ministry of Law and Justice. Had this Section remained in the statute book, it would have probably given wide discretion to the Commission to deviate from the seniority convention.

^[88] and is binding on the Legislature, Executive and even the Judiciary. Further, even after the judgment in the Second Judges Case in 1993, the convention of appointing the senior most Judge of the Supreme Court of India has Chief Justice has been scrupulously followed and there has been no deviation from this convention in any of the twenty-one appointments from October 1993 (when the judgment was delivered) to date.^[89] The recent differences that became public between the former Chief Justice of India Dipak Misra and the then members of the collegium one of whom is now the incumbent Chief Justice of India did not in any way result in a deviation from the seniority convention, in spite of the speculation in this regard.^[90] Deviation from this Constitutional Convention would have resulted, in the words Hiliare Barnett, in a "charge of unconstitutional conduct" towards the person responsible for the deviation which no Government even with a brute majority would ever want to risk in this country ever again.

V. CONCLUSION

The evolution of the seniority principle from a practice to a convention has been a slow and steady process not without any hiccups along the way. The supersessions of 1973 and 1977 though unjustified, did give impetus to the Supreme Court to eventually hold in 1993 that the appointment of the senior most Judge of the Supreme Court as the Chief Justice of India is a Constitutional Convention, albeit with the incorporation of the fitness criterion. Considering the fact that the Supreme Court of India is only in its 69^th year, it would be too soon to conclude that the seniority convention for the appointment of the Chief Justice of India has stood the test of time. But it is certainly clear that this seniority convention is now an integral part of Constitutional Law in India. The Constitution of India like all Constitutions of the world is an organic document; however, its evolution cannot be possible without a firm foundation. Foundations cannot be solidified without the help of Constitutional Conventions. And this is why a Constitutional Convention, should be zealously guarded and preserved, particularly when it concerns the appointment of the Chief Justice of India.

The Author is an independent practitioner in the Bombay High Court. He can be contacted on [email protected]

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]