Evolution Of Seniority Convention And Appointment Of Chief Justice Of India
II. THE SOURCE OF THE SENIORITY PRACTICE AND ITS ORIGINS
III. THE MEANING OF A CONSTITUTIONAL CONVENTION AND ITS DISTINCTION FROM A PRACTICE
IV. THE EVOLUTION OF THE SENIORITY PRACTICE INTO A CONSTITUTIONAL CONVENTION
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 69th 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]
 Mila Versteeg and Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. Ch. L. Rev. 1641(2014), (page 1652, 1653). The longest State Constitution in the world and perhaps the longest Constitution in the World is the Constitution of Alabama which 340,136 words therefore making it almost twice as long as the Indian Constitution. (page 1653) https://books.google.co.in/books?id=oAvfBQAAQBAJ&pg=PT170&lpg=PT170&dq=the+constitution+of+india+is+the+longest+constitution+of+the+world+except+the+constitution+of+alabama&source=bl&ots=BRrvpwkfM7&sig=xyKfaMAgUvIWONpmCXAAJl5fogk&hl=en&sa=X&ved=0ahUKEwjF9IejsJHZAhXLMI8KHYe8CAIQ6AEIbTAQ#v=onepage&q=the%20constitution%20of%20india%20is%20the%20longest%20constitution%20of%20the%20world%20except%20the%20constitution%20of%20alabama&f=false (last visited on 6-2-2018 at 7:15 p.m.)
 See the Constituent Assembly Debates, Official Report, Reprinted by Lok Sabha Secretariat, New Delhi, 2014. Also see http://parliamentofindia.nic.in/ls/debates/debates.htm (last visited on 6-2-2018 7:17 p.m.)
 Why January 26 will always be the most important day for the republic, Written by Seema Chishti | New Delhi | Updated: January 26, 2016 8:35 pm, http://indianexpress.com/article/explained/why-january-26-will-always-be-the-most-important-day-for-the-republic/ (last visited on 6-2-2018 7:15 p.m.)
 George H. Gadbois, Jr., Supreme Court of India The Beginnings, Ed. By Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018 at page 86. As quoted from the Report of Ad hoc Committee on the Supreme Court, paragraph 16.
 Article 124(1)
 Article 124 (2-A)
 Article 124(5) and Article 218
 Article 125 and 221
Article 74 Council of Ministers to aid and advise President- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Article 124 (2)- Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
The word consultation in Article 124 (2) has been interpreted to effectively mean primacy of the opinion of the Chief Justice of India by the majority judgment in the case of Supreme Court Advocates-on-Record Association and others v. Union of India (1993) 4 SCC 441, 709-710 (para 486) This in effect means that in case of a conflict between the opinions of the President and the Chief Justice, the opinion of the Chief Justice will prevail. Therefore, no appointment can be made without the "concurrence" of the Chief Justice, although the majority has not specifically interpreted "consultation" to mean "concurrence". However, the dissenting opinion of Ahmadi J. states that the word "consultation" cannot be interpreted to mean "concurrence" (SCC 616-625-para 291 293, 300). Though not specifically stated, Punchhi J. has while studying the legislative history of British India and the Constituent Assembly Debates come to the conclusion that the word "consultation" was preferred to "concurrence" (SCC 715-716 para 495). Both Ahmadi J and Punchhi J. have held that the Chief Justice of India will not have primacy of opinion in appointments.
 Though in the first clause of the proviso, the words used are simply "other than the Chief Justice" and not "other than the Chief Justice of India" , it is apparent from a reading of the marginal note of the Article and from the use of the article "the" before Chief Justice, that it would mean "The Chief Justice of India" and not "A Chief Justice of a High Court." Moreover, the Article is placed in Chapter IV of Part V which specifically deals with "The Union Judiciary."
 The Indian High Courts Act 1861 was the first Act that was enacted to establish the Charter High Courts in Bengal and at Madras and Bombay and several other Presidencies. Section 5 reads thus:
Precedence of Judges of High Courts – The Chief justice of any High Court shall have Rank and Precedence before the other Judges of the same Court, and such of the other Judges of such Court as on its Establishment shall have been transferred thereto from the Supreme Court shall have Rank and Precedence before the Judges of the high Court not transferred from the Supreme Court, and except as aforesaid, all the Judges of each High Court shall have Rank and precedence according to the Seniority of their Appointments, unless otherwise provided in their Patents. As quoted from the original text reproduced in "Indian Constitutional Documents (1771=1915)" Compiled and Edited by Panchanandas Mukherji, Calcutta Thacker Spink & Co 1915 page 345
 In this context it means the Supreme Court of Judicature of Calcutta established by the Regulating Act of 1773
 Section 7 Provision for vacancy of the office of Chief-Justice of other Judge- Upon the happening of a vacancy in the office of the Chief Justice, and during any absence of a Chief Justice, the Governor-General in Council or Governor in Council, as the case may be, shall appoint one of the Judges of the same High Court to perform the duties of Chief Justice of the said Court until some person has been appointed by Her Majesty to the office of the Chief Justice of the same Court, and has entered on the discharge of the duties of such office, or until the Chief Justice has returned from such absence; and upon the happening of a vacancy in the office of any other Judge of any such High Court, and during any Absence of any such Judge to act as Chief Justice, it shall be lawful for the Governor-General in Council or Governor in Council, as the case may be, to appoint a Person, with such Qualifications, as are required in Persons to be appointed to the High Court, to act as a Judge of the said High Court and the Person so appointed shall be authorized to sit and to perform the Duties of a Judge of the said Court until some Person has been appointed by Her Majesty to the office of Judge of the same Court, and has entered on the Discharge of the Duties of such Office, or until the Governor-General returned from such Absence, or until the Governor-General in Council or Governor in Council as aforesaid shall see Cause to cancel the Appointment of such acting Judge. Indian Constitutional Documents Supra note 13 page 346 The said Section is similar to Article 126 of the Constitution of India which conferrers on the President the power to appoint an Acting Chief Justice from "one of the other Judges" of the Supreme Court to perform "the duties of the office" of the Chief Justice when the said office is vacant or when the Chief Justice "by reason of absence of otherwise is unable to perform the duties of his office."
 Chapter I of Part IX of the Government of India Act, 1935 deals with the Federal Court. As referred to from http://lawmin.nic.in/legislative/textofcentralacts/GOI%20act%201935.pdf (Last Visited 12-2-2018 at 6:00 p.m.)
 Abhinav Chandrachud, Supreme Court's Seniority Norm Historical Origins, Economic and Political Weekly, Vol. XLVII, No. 8, February 25, 2012
 Ibid page 27, 28
 Ibid page 26, 28. According to Dr. Chandrachud, with the appointment of Shah Muhammad Sulaiman as the first Indian Chief Justice of the Allahabad High Court, between 1932 and 1946, "the seniority convention appeared to have been followed for the next two chief justices." With respect to the Patna High Court, the seniority convention was followed between 1943 and 1950.
 Ibid page 26
 Ibid page 29
 Constituent Assembly Debates, Official Report, Volume VIII, Tuesday, 24th May 1949 page 229 to 267
 Ibid page 230 to 234. Amendment No. 1817 was moved by Prof. Shibban Lal Saksena and Amendment No. 1819 was moved by Mr. B. Pocker Sahib
 '(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the Houses of Parliament.'
 '(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme and the Chief Justice of the High Court in the States and every judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.'
 Supra Note 22 page 245
 Ibid page 249
 Ibid page 250
 H.M. Seervai, Constitutional Law of India, Fourth Edition, Volume 3, page 2956; See also, Granville Austin, Working A Democratic Constitution, A History of the Indian Experience, Oxford University Press, eleventh impression 2013, page 135, foot note 36.
 George Gadbois Jr., The Federal Court of India: 1937-1950, 6 JILI 253 (1964) at page 254 foot note 3.
Section 200 Establishment and Constitution of the Federal Court- (1) There shall be a Federal Court consisting of a Chief Justice of India and such number of other judges as His Majesty may deem necessary, but unless and until an address has been presented by the Federal Legislature to the Governor-General for submission to His Majesty praying for an increase in the number of judges, the number of puisne judges shall not exceed six.
 Supra Note 4 page 75
 As stated on the website of the Supreme Court of India http://supremecourtofindia.nic.in/chief-justice-judges (last visited on 13-02-2018 at 5:15 p.m.)
 Supra Note 31
 B.P. Sinha, Reminiscences and Reflections of a Chief Justice, B.R. Publishing Corporation, Delhi, 1985
 Granville Austin, Working A Democratic Constitution, A History of the Indian Experience, Oxford University Press, Eleventh impression 2013, page 134. There is no reference to how the "unwritten law" had developed or originated
 Ibid The said incident was narrated to Granville Austin by Mr. P.K. Chatterjee who was an Advocate practicing in the Supreme Court and whose family was on friendly terms with Justice B.K. Mukherjea's family.
 The Chief Justice between 1950 and 1958 were as follows: 1) Harilal Jekisundas Kania-Appointed as The Chief Justice of India on 26-01-1950, 2) M. Patanjali Sastri- Appointed as The Chief Justice of India on 07-11-1951, 3) Mehr Chand Mahajan- Appointed as The Chief Justice of India on 04-01-1954, 4) Bijan Kumar Mukherjea-Appointed as The Chief Justice of India on 23-12-1954, 5) Sudhi Ranjan Das-Appointed as The Chief Justice of India on 01-02-1956. http://supremecourtofindia.nic.in/chief-justice-judges (Last visited on 15-2-2018 at 12:53 p.m.)
 The Law Commission of India, Fourteenth report (Vol. I) page 38 to 40 http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf (last visited on 15-2-2018 at 1:05 p.m.)
 Ibid page 39 para 18
 Ibid page 40
 Supra Note 30 page 2816
Ibid page 39 para 18
 Supra note 30 pages 2619, 2813-2814, 2816, 2819, 2820. Also see the argument of H.M. Seervai on this issue that has been recorded by Desai J. in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, 636-639 (paras 770 and 771).
 Supra note 37 page 135
 Ibid page 136
 Supra note 4 page 96
 P. Ramanatha Aiyar's, Advanced Law Lexicon, 5th Edition, Volume 1, page 1136; as quoted from George Marshall, Constitutional Conventions: Rules and Forms of Political Accountability, page 210. As cited in Vidadala Harinadhababu v. N.T. Ramarao (FB), AIR 1990 AP 20, 43
 Hiliare Barnett, Constitutional & Administrative Law, Routledge.Cavendish, Sixth Edition 2006, page 25; as quoted from Sir Ivor Jennings, The Law and the Constitution, University of London, 1959
 Ibid page 31
 A.V. Dicey, Introduction to the Study of The Law of the Constitution, Volume 1 Ed. J.W.F. Allison, Oxford University Press 2013, Lecture VIII The Connection between the Law of the Constitution and the Conventions of the Constitution page 190.
 Ibid 189
 Ibid 186
 Supra Note 49 page 27
 Ibid 28
 Ibid as quoted from Collins' English Dictionary
 M.P. Jain, Indian Constitutional Law, 6th Edition Volume 2-page 2331
 Lorne Sossin and Adam M. Dodek, When Silence Isn't Golden: Constitutional Conventions, Constitutional Culture, and the Governor General PARLIAMENTARY DEMOCRACY IN CRISIS, Peter H. Russell, Lorne Sossin, eds., University of Toronto Press, 2009 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394530 (Last Visited on 26-2-2018 at 9:06 PM)
 Supra Note 50 page 28,29
 The tenures of the respective Chief Justices have been reproduced from the official website of the Supreme Court of India. https://www.sci.gov.in/chief-justice-judges (Last Visited on 21-1-2019 at 5:25 PM)
 Supra Note 37-page 135 foot note 36.
 ILR (1974) Delhi 725. The Judgment was delivered by the A.N. Andley C.J. (as he then was) of the Delhi High Court.
 Ibid page 727
 Ibid page 729, 730. The other grounds of challenge were that the mandatory consultation comprehended was not made thereby violating Article 124(2) of the Constitution and that the appointment was mala fide