Published: 03rd March 2021
What the FAQ: What is the process of appointing a Chief Justice of India? Plus, other controversial remarks made by judges
Here we try to explain the procedure of appointing the Chief Justice of India, whether the government has a say in it and more
The Chief Justice of India SA Bobde on Monday, March 1, asked a government employee if he would marry the woman who has accused him of repeatedly raping her. He was accused of raping a schoolgirl and faces charges under the severe Protection of Children from Sexual Offences Act. According to news reports, Bobde asked the petitioner, 'Will you marry her?', adding: “We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry her.”
Here we find out more about past controversial comments by judges, how the chief justice is appointed and more.
What is the procedure of appointing a CJI?
Ans: The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary:
- The procedure is initiated by the Law Minister seeking the recommendation of the outgoing CJI at the ‘appropriate time’, which is near to the date of retirement of the incumbent CJI.
- The CJI sends his recommendation to the Law Ministry; and in the case of any qualms, the CJI can consult the collegium regarding the fitness of an SC judge to be elevated to the post.
- After receiving a recommendation from the CJI, the law minister forwards it to the Prime Minister who then advises the President on the same.
- The President administers the oath of office to the new CJI.
Does the Central Government get a say in the CJI's appointment?
Ans: Except for the law minister seeking the recommendation from the incumbent CJI, and forwarding it to the Prime Minister, the government has no say in the appointment of the CJI. The appointment of the CJI and the appointment of SC judges, the key difference is that in the former, the government cannot send the recommendation of the CJI (or the collegium) back to them for reconsideration; while in the latter, the government can do so. However, if the collegium reiterates those names, then the government cannot object any further. The Memorandum of Procedure does not have any provision for the eventuality of the government disagreeing with the incumbent CJI’s recommendation on the new one.
How do you appoint an acting Chief Justice?
Ans: Appointment of acting Chief Justice is to be made by the President under Article 126 of the Constitution. Vacancy in the office of the Chief Justice must be filled whatever the period of vacancy. In such an eventuality, the seniormost available Judge of the Supreme Court will be appointed to perform the duties of the office of the Chief Justice of India. As soon as the President has approved the appointment, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of India or in his absence the Judge concerned of the Supreme Court and will announce the appointment and issue the
necessary notification in the Gazette of India.
Were there other CJIs/judges who made controversial remarks in the past?
Ans: “The way this institution is being treated for the last 3 to 4 years is as if this institution is going to die. People of this country should know the truth. Do the powerful of this country think they can run this country?” Justice Arun Mishra had uttered these words while hearing the case pertaining to sexual harassment allegations against then Chief Justice of India Ranjan Gogoi. The statement had been made after Solicitor General Tushar Mehta suggested a Special Investigation Team probe into the issue. In 2009, Karnataka High Court judge DV Shylendra Kumar, in an article, wrote that the then Chief Justice of India KG Balakrishnan "is more like a serpent without fangs, who can only hiss, but not bite" for not making his assets public. In May 2007, Justice Markandey Katju said "hang the corrupt to the lamp posts" while hearing a bail plea connected to the Bihar fodder scam.