Dipak Misra takes over as 45th CJI for 13 months: Short stints have been a curse for India's highest judicial post
The latest in this quick procession is Justice Dipak Misra, who took over on Monday as the 45th Chief Justice of India.
Almost like cameos in films, Chief Justices of India (CJIs) appear and disappear rapidly from the very apex of the country's judicial system.
Justice Dipak Misra takes oath as the Chief Justice of India (CJI). pic.twitter.com/r4aeTlftsd
— ANI (@ANI) August 28, 2017
The latest in this quick procession is Justice Dipak Misra, who took over on Monday as the 45th Chief Justice of India (CJI). By virtue of being the senior-most judge after the retiring CJI, Justice JS Khehar, Justice Misra has become the automatic choice to succeed him. But he will stay in office only for 13 months, till he retires on 2 October 2018 on attaining the age of 65 years.
Yet Justice Misra is luckier. Justice Khehar, whom he succeeds, stayed in office for only seven and a half months. And Justice TS Thakur, who preceded Justice Khehar, lasted 11 months. And before Justice Thakur, Justice HL Dattu had been the CJI for, again, 13 months.
Besides causing ripples of instability in the administration of judicial system, the short tenures of CJIs leave them little time to execute any ideas they have to deal with the twin problems of filling judges' vacancies and clearing the mounting heaps of pending cases.
In the 67 years since 1950, when India's Constitution and the Supreme Court came into existence, we have had 45 CJIs, which works out to an average tenure of 18 months for the country's highest judicial post. The CJI who has had the longest term was Justice YV Chandrachud, who was in office for close to seven years and five months till July 1985. Justice Kamal Narain Singh, the 22nd CJI, had the dubious honour of having the shortest stint of 17 days in 1991.
In contrast, against the 45 Chief Justices, India has had 14 Presidents, 14 Prime Ministers and 16 Lok Sabha Speakers between 1950 and now.
How to ensure longer terms for chief justices?
In the first place, how did we get into the current mess of short-lived chief justices? That's because of the system of choosing the senior-most judge to replace the outgoing CJI. And how did that system come in? Blame Article 124(2) of the Constitution for it. It has flummoxed even the most hard-boiled Constitutional wizards. It states:
"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. (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4)."
This leaves unsaid a lot more than it says. While the article lays down the process of appointing judges, and even removing them, it is disconcertingly silent on how to go about choosing the Chief Justice of India.
Not surprisingly, Article 124(2) has led to much hair-pulling, leading to at least two possible interpretations in legal circles.
1) The Constitution's authors perhaps wanted the post of the CJI to be considered no more than that of a judge and expected the government to follow the same process for filling the two posts.
2) Or was the government expected to invent an altogether new system beyond the purview of Article 124(2) to appoint the CJI, probably someone other than an SC judge, after consultation with the incumbent in office-or more likely without it?
This confusion led to the convenient "convention" of the outgoing Chief Justice recommending the name of the senior-most judge after him in the SC as his successor, and then the President, in effect the Prime Minister, accepting it.
In 1954, Jawaharlal Nehru tried to break the convention by appointing Justice BK Mukherjea as the CJI after the retirement of Justice Patanjali Sastri. However, Nehru relented and stuck to the seniority rule when all the judges of the court, including Mr Mukherjea, offered to resign.
But Indira Gandhi suffered no such qualms of conscience-she rarely did-when she broke the seniority convention with impunity twice. In 1973, she appointed Justice AN Ray as the CJI, bypassing three judges-Justices Manilal Shelat, AN Grover and KS Hegde-senior to him, throwing judiciary into a turmoil and leading to widespread protests across India. Indira outdid herself in 1977 when Justice Ray retired. She chose Justice MH Beg as his successor, bypassing his senior, Justice HR Khanna, who then resigned from the court.
Chief Justice Ray was one of the four judges of the five-judge bench that, in its infamous 28 April 1976 judgement during the emergency, upheld Indira Gandhi's right to throw anyone into prison at her whim, denying them the chance to even question their detention in a court. While Justice Ray repaid a debt for the services rendered a year ago, Justice Khanna, the lone dissenting judge in the 1976 verdict, was punished.
At least, twice in the past — once in 1993 (the case of judges' appointments) and again in 2015 (case related to the National Judicial Appointments Commission) — the Supreme Court backed the seniority convention, leaving the government with little choice in finding an alternative system.
Remedy worse than disease
In general, appointments made solely on the basis of seniority possibly carry an inherent bias against merit and so are questionable, especially if they mean very short terms for those appointed. But in the case of picking CJIs, breaking the seniority rule seems like the perfect case of a remedy being worse than the disease-if it's a disease.
Breaking this convention could lead to questionable appointments and flagrant misuse of power, like the Indira Gandhi regime's 1973 and 1977 examples. It could also end up in controversies of the kind that flare up over appointment of directors-general-of police (DGPs) in states.
With the ruse of picking meritorious officers who will have reasonably long terms, several chief ministers routinely hand-pick yes-men as state police chiefs, ignoring their seniors. Ironically, in this case, the Supreme Court came up with a solution in a landmark judgment on 22 September 2006. The remedy involved the chief minister making a choice from three senior-most officers, empanelled by the UPSC with the considerations of length of service and record, and then ensuring that the new police chief would have a minimum term of two years, irrespective of the date of his superannuation.
But no solution that could be even remotely interpreted as executive interference is workable in the case of selecting the Chief Justice of India. Nor is it acceptable to the Supreme Court for good reasons. A change of status quo could mean the judiciary making itself vulnerable to browbeating by the executive, whichever party is in power.
Allegations against Misra ignored
Some questioned the choice of Justice Misra in view of the allegations against him related to a 1979 land allotment in Odisha and the suicide note of former Arunachal Pradesh Chief Minister Kalikho Pul. But both, the outgoing CJI and the Narendra Modi government, went ahead with the appointment and stuck to the seniority rule, perhaps in their respective best interests.
The Supreme Court has often been criticised for favouring what is ridiculed as the system of "judges appointing judges". In fact, the court, again for good reasons, also favours the present system of what effectively means the Chief Justice appointing the next Chief Justice. For the time being, or at least till a massive structural overhaul happens in future, that seems to be the best bet to ensure that India's judiciary stays robust and independent.
Till then, the country has to make do with short-lived chief justices.
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