Explained: Supreme Court's Judges' Objection To CJI's Appointment Method And How SC Judges Are Appointed

Lalit had circulated a letter mentioning names of four candidates for Supreme Court judgeship among the Collegium members. The Collegium is the group of five senior-most apex court judges, headed by the CJI, that finalises the appointment of judges to the Supreme Court.

Of the four judges part of the Collegium besides Lalit, Justices DY Chandra and S Abdul Nazir had objected to Lalit's "circulation" method of appointment of judges. The other Collegium members are Justices Sanjay Kishan Kaul and KM Joseph.?

Since the Union government has formally asked Lalit to recommend his successor, the appointment of judges is now stalled until at least next month when the next CJI will be sworn in. Chandrachud is the second senior-most judge in the Supreme Court and is believed to be the next CJI by convention.?

Here we explain why the two judges objected to Lalit's method, what's Collegium, and what the Supreme Court has said.?

What's the controversy over CJI's appointment method?

The controversy formally began on September 26 when the Collegium convened to consider the names of 11 judges.?

On Sept. 26, the name of Justice Dipankar Dutta, Chief Justice of Bombay High Court, was unanimously approved and the consideration of the rest of the 10 names was deferred to Sept. 30, according to the Supreme Court statement.

In the Sept. 26 meeting, another precedent was set as the merit of the judgements of judges being considered was also assessed. ?

"Though the procedure of circulating the judgments of the prospective candidates and making an objective assessment of their relative merit was? introduced for the first time in the meeting held on September 26, 2022 and though the name of Mr. Justice Dipankar Dutta was also cleared in that meeting,?a demand was raised by some of the members of the Collegium that we should have more judgments of the other candidates. Therefore, the meeting was postponed to September 30, 2022 and more judgments were circulated," said the Supreme Court's statement.

However, Chandrachud did not attend the meeting on Sept. 30. In absence of Chandrachud, CJI Lalit circulated a proposal through a letter.

It is the circulation of this letter that Chandrachud and Nazir objected to.?

Why did judges object to CJI's method?

The letter was issued since a physical meeting could not be held in Chandrachud's absence.?

On Sept. 30, Chandrachud held his court until 9 pm. The Collegium meeting was scheduled to be held at 4:30 pm.?

Justices Kaul and Joseph vide their respective letters dated October 1 and October 7, 2022 approved Lalit's proposal, but Chandrachud and Nazir opposed it.

"By separate letters dated October 1, 2022, Justice DY Chandrachud and Justice S Abdul Nazeer, objected inter alia to the method adopted in the letter dated September 30, 2022," said the SC statement.

However, the objection appeared to be over the procedure adopted rather than over the candidates.

"The letters of Hon’ble Dr. Justice Chandrachud and Hon’ble Mr. Justice S. Abdul Nazeer however did not disclose any views against any of these candidates," said the SC statement.?

The meetings of the Collegium are ususally held physically and, in case of differences over the names of candidates, the panel irons them out before a consensus list is formally announced. The names of the candidates and their judgements are also usually not circulated to the members of the Collegium in physical absence, sources with intimate knowledge of the subject told PTI.

Before a physical meeting of Collegium could be held, the Union Law Minister Kiren Rijiju wrote to Lalit to recommend the name of the next CJI.?

In light of Rijiju's letter, the discussions initiated on Sept. 26 were declared to have concluded without any decisions on the names of candidates.?

"In the circumstances, no further steps need be taken and the unfinished work in the meeting called for September 30, 2022 is closed without there being any further deliberation. The meeting dated September 30, 2022 stands discharged," said the Supreme Court statement.?

Why is SC judges' appointment stalled for a month?

By convention, judges to the Supreme Court are not appointed between the time of government writing to the CJI for their recommendation of their successor's name and the swearing in of their successor.?

"While there is no specific bar on an outgoing CJI to hold a collegium meeting even after naming the successor, successive CJIs have found it difficult to bring the collegium members together in making recommendations after the government sparks off the process of appointing the next CJI," reported Hindustan Times.

The present CJI Lalit is due to retire on November 8 and Chandrachud, the senior-most judge after him, is widely tipped to succeed him next month.?

As the government wrote to Lalit before the Collegium could finalise names, the process remains suspended for at least until after Lalit's succesor is sworn in.

The Supreme Court currently has 29 judges against the sanctioned strength of 34.

How are SC judges appointed?

The Collegium advises the Union government, which in turn advises the President of India to appoint Supreme Court judges.

The Union Law Ministry lists the following steps in the appointment of Supreme Court judges:

1. The CJI takes opinion of the Collegium members. The CJI would ascertain the views of the seniormost Judge in the Supreme Court, who hails from the High Court from where the person recommended comes, but if they do not have any knowledge of his merits and demerits, the next senior-most judge in the Supreme Court from that High Court should be consulted.

2. The opinion of Collegium in respect of each of the recommendations as well as the senior-most Judge in the Supreme Court from the High Court from which a prospective candidate comes, would be made in writing and the CJI must transmit it to the Government of India as part of record.

3. After receipt of the final recommendation of CJI, the Union Law Minister will put up the recommendations to the Prime Minister who will advise the President in the matter of appointment.

4. Following the approval, the CJI will be informed and then formalities such as the medical certification of the concerned candidate would be carried out, following which the President would sign the warrant of appointment the the government would then issue the notification announcing the appointment.?

(With PTI inputs)