Appointment of senior-most judge as Chief Justice of India a Constitutional convention, Supreme Court

The Supreme Court’s order in the petition challenging appointment of Justice JS Khehar as the Chief Justice of India (CJI) has some interesting observations..As first reported by Indian Express, though the order was passed on December 30, 2016, the same was uploaded on the website of Supreme Court only yesterday..The petition was filed by National Lawyers’ Campaign for Judicial Transparency and Reforms seeking a quashing of the appointment of Justice Khehar as the CJI. The petition had, interestingly made many ancillary prayers including declaration that NJAC case is void ab initio and that the doctrine of basic structure evolved in the judgment in Kesavananda Bharati v. State of Kerala “is nothing but blasphemy” and has no foundation in jurisprudence..Both the judges on the Bench, Justice RK Agarwal and Justice DY Chandrachud have given separate concurring orders in the matter..The basis for seeking quashing of Justice Khehar’s appointment as Chief Justice was that since he had delivered the judgment in the NJAC case, he vested in himself, the power to appoint judges to Constitutional courts..Justice Chandrachud has stated the following in his order:.“Being the senior most Judge of the Supreme Court of India, his appointment as Chief Justice of India follows a recognised constitutional convention (duly acknowledged and reiterated in the Memorandum of Procedure) of the senior most judge of the Supreme Court being appointed to the office of Chief Justice of India. It is preposterous to urge that the senior most puisne Judge of the Supreme Court is disqualified for appointment as Chief Justice of India on the basis of a perception formed by a litigant of a judgment delivered by the Judge.”.Regarding the contention that Justice Khehar stands disqualified for appointment as Chief Justice of India because of the judgment delivered by him in the NJAC case, Chandrachud J. has called it thoroughly misconceived..He has stated in strong words that,.“Palatability of a judicial decision to a litigant is not the touchstone for determining eligibility for constitutional office”..Interestingly, the judge has also dealt with the prayer regarding Keshavnanda Bharati judgment and has called it a frivolous prayer..“The declaration which is sought from this Court, under Article 32, to the effect that the decision in Kesavananda Bharati “is nothing but blasphemy” and “has no foundation in jurisprudence” is frivolous. The judgment in Kesavananda Bharati has been rendered by a Bench of thirteen Judges and constitutes a binding precedent.”.Justice RK Agarwal who presided the Bench has also brushed aside the contentions of the petitioner holding the following:.“It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Hon’ble Judges constituting the Constitution Bench and the case was decided by a majority of four Hon’ble Judges and not by His Lordship alone. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Hon’ble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.”.National Lawyers Campaign had moved the Supreme Court twice challenging the appointment of Justice Khehar as CJI. First petition sought a direction to the Central government to refrain from appointing him as CJI. The same, however, came up after the appointment order was passed by the government, thus, rendering the petition infructuous. A second petition was then filed seeking a quashing of the appointment in which the court delivered this order..Read the order below.