New Delhi: Chief Justice of India D. Y. Chandrachud on Tuesday, October 15, finally recommended the name of the senior-most Supreme Court judge, Justice Sanjiv Khanna as his successor.
While such a recommendation is mere formality, it has been the practice for a long time and also finds mention in the memorandum of procedure which guides appointments in the Supreme Court and the high courts.
“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. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India,” the memorandum says.
It was in this regard that Union law minister Arjun Ram Meghwal wrote to CJI Chandrachud last week, seeking his recommendation. The CJI demits office on November 10. The CJI sent his recommendation to the government on October 15, indicating a delay of at least a couple of days if the weekend is not considered.
This reporter has learnt that one reason why the CJI kept his recommendation pending was so that he, through the Supreme Court Collegium, could be allowed to recommend a name to fill the lone vacancy in the Supreme Court.
Authoritative sources told this reporter that the CJI tried to persuade the other judges who constitute the Collegium along with him to decide on the name of a senior advocate whom he wanted to elevate to the bench directly from the bar.
Apart from the CJI, the other members of the Collegium are Justices Sanjiv Khanna, B.R. Gavai, Surya Kant and Hrishikesh Roy. The vacancy against which the CJI planned to recommend the name of this senior advocate, who was till sometime back a senior law officer representing the government of India, was caused due to the retirement of Justice Hima Kohli on September 1.
However, sources say, the other members of the Collegium were not too keen to make a recommendation at this stage, since the CJI had effectively less than a month left before he retired from office.
“While there is no written rule about whether the outgoing CJI should or should not recommend names for elevation when he has less than one month left, the predominant view is that it should be left to his successor to take a call on this subject. That is the convention,” observed a former CJI, who did not wish to be named.
This former CJI also said that there was another convention, this one dealing with the outgoing CJI not holding Collegium meetings to recommend judges’ names for the Supreme Court.
Observers also pointed to the outgoing CJI Chandrachud’s own decision to not attend the last meeting of the Collegium scheduled by his predecessor – Justice U.U. Lalit. To avoid attending the meeting, he reportedly held court unusually late – till around 9 pm – on the day, in September 2022.
While there was complete consensus on the name of then Bombay high court Chief Justice Dipankar Dutta, a formal decision could not be taken due to the absence of (the then) Justice Chandrachud.
This forced CJI Lalit to circulate a proposal to this effect through a letter circulated on September 30, 2022. Again, while Justices S.K. Kaul and K.M. Joseph agreed to CJI Lalit’s proposal, Justice Chandrachud and Justice S.A. Nazeer objected to the manner of circulation of the proposal. Even after CJI Lalit again wrote to the duo, there was no response from them. After his retirement, Justice Nazeer was appointed governor of Andhra Pradesh.
No decision, therefore, could be taken to the proposal to recommend the name of Justice Dutta for elevation to the Supreme Court and CJI Lalit retired soon thereafter.
Interestingly, the resolution made public on the Supreme Court’s website with regard to the deliberations suggests that a decision was not taken also because, while the Collegium was divided, the Union law minister had sent a letter to CJI Lalit to nominate his successor.
Justice Dutta was eventually elevated on December 12, 2022.
While the larger five-judge Collegium did not make any recommendation, the Collegium comprising three judges – CJI Chandrachud and Justices Sanjiv Khanna and B.R. Gavai, which met on October 15 – did recommend names of three advocates for appointment as judges of the Andhra Pradesh high court. It also recommended names for the appointment of one additional judge as permanent judge of Karnataka high court and the appointment of four judicial officers as judges of the high court of Kerala.
Sources in the Supreme Court told The Wire that names will be considered for elevation to the Supreme Court after CJI Chandrachud demits office and Justice Khanna calls a meeting of the Collegium after taking over as CJI.
