Merit of prospective CJI should be assessed by jurists, not government: Markandey Katju

3. Even in the Second Judges case, to which Mr Sankaranarayanan refers, the Supreme Court has said: "Appointments to the office of the Chief Justice of India have, by convention, been of the seniormost judge of the Supreme Court considered fit to hold the office. The provision in Article 124(2) enabling consultation with any other judge is to provide for such consultation if there be any doubt about the fitness of the seniormost judge to hold the office, which alone may permit and justify a departure from the long standing convention. There is no reason to depart from the existing convention".

Now a convention is a convention, and not a statutory or Constitutional rule. When the Supreme Court delivered its verdict in the Second Judges case in 1993 (which practically amended the Constitution, as I have already pointed out), there may not have been any reason to depart from the convention. But since then experience has shown the harmful effects it has had on the judiciary.

Mr Shanti Bhushan, the former Union law minister, and a very senior lawyer of the SC, filed an affidavit in the SC that half the 16 CJIs prior to the filing of the affidavit were corrupt. Surely Mr Shanti Bhushan knew what he was talking about, and he has far greater experience of the legal world than Mr Sankaranarayanan (he was Advocate General of UP even before I started law practice in the Allahabad high court in 1970, and he has also been a Union law minister). Even after the filing of that affidavit there have been CJIs over whose integrity there was a grave question mark, and I am sure Mr Sankaranarayanan knows whom I am talking about.

As I said, a convention is not a statutory rule, and when experience shows it has been having a deleterious effect it should be given up, and a better method adopted.

4. Mr Sankaranarayanan has referred to the supersession of the three seniormost judges of the Supreme Court by Mrs Gandhi's government and appointment of Justice A N Ray, who was junior to them, as the CJI. I agree with him that this was totally improper, and an attempt to end the independence of the judiciary.

But when I said that the CJI should be appointed on merit, not seniority, I did not mean that the assessment of merit should be done by the government. It should be done by a committee of eminent jurists (which may include eminent senior lawyers of the SC and HCs, eminent retired judges, and legal academicians of repute), and the members of this committee could be chosen by a panel consisting of the Chief Justice of India, the Union law minister, and the chairman of the Bar Council of India. Alternatively, some other method of assessing merit by an independent body of jurists could be devised.