A Six-Member Collegium under Justice DY Chandrachud?
By K Parameshwar and A Sregurupriya
The recent piece in Bar & Bench on the composition of the collegium over the next five years has not highlighted a unique situation that will arise during the initial months of the Justice DY Chandrachud's tenure as Chief Justice of India, by virtue of his tenure being one of the longest in the past decade.
If one considers the composition of the 5-member collegium solely on the basis of seniority, the collegium headed by Justice Chandrachud would not have a successor Chief Justice until the retirement of Justice MR Shah on May 15, 2023. This would imply that the collegium would not have a successor Chief Justice for a period of over six months.
The last time this situation arose was during the 3 year and 117 days’ long tenure of the 37th Chief Justice KG Balakrishnan.
When Justice Balakrishnan took oath on January 14, 2007, there were eight puisne judges (Justices BN Agarwal, Ashok Bhan, (Dr.) Arijit Pasayat, BP Singh, HK Sema, SB Sinha, Dr. Lakshmanan and GP Mathur) who were senior to Justice SH Kapadia, the successor Chief Justice.
The apex court had the occasion to examine this exact situation in the Three Judges’ Case.
The Court first stated that, “it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court”.
It then went on to qualify this general rule and stated that,
“Ordinarily, one of the four senior-most puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four senior-most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection.”
This requirement is reiterated in the Memorandum of Procedure for appointment of Supreme Court Judges of the Department of Justice, Ministry of Law & Justice.
The Memorandum of Procedure states that, “If the successor Chief Justice of India is not one of the four seniormost puisne Judges, he would be made part of the collegium as he should have a hand in the selection of Judges who will function during his term as Chief Justice of India”.
Thus, the collegium headed by Justice Chandrachud between November 9, 2022 and May 15, 2023, would be a six-member collegium due to the inclusion of Justice Sanjiv Khanna, his successor CJI. Interestingly, this would give Justice Khanna a two-month head start over his immediately senior puisne judge, Justice Ajay Rastogi, who would be entering the collegium only on January 5, 2023 after the retirement of Justice S Abdul Nazeer.
One interesting issue arises. Must the successor CJI, who would be made a part of the collegium, be the immediate successor?
This is an issue of considerable importance when viewed in the context of the immediately succeeding CJI having an extremely short tenure.
Since the rationale is that the successor CJI must have a hand in the selection of Judges who would be functioning during his tenure as CJI, it might not serve the purpose for the immediate successor CJI having a tenure of, say, 17 days (as the 22nd Chief Justice of India KN Singh did), to be the sixth member of the collegium as opposed to his immediate successor who might have a significantly longer tenure (as the 23rd Chief Justice of India MH Kania did).
Arguably, some discretion could be allowed for deciding which successor CJI must be included as the sixth member of the collegium based on the relative length of tenure – a situation that does not arise during the tenure of Justice Chandrachud, as both the Chief Justices who will be immediately succeeding him, Justice Khanna and Justice BR Gavai, have roughly the same tenure of six months each.
K Parameshwar and A Sregurupriya are advocates practicing at the Supreme Court of India.