Appointment of Judges

The appointment of judges has never been free of political controversy, because it is, in a real sense, part of the political process: who sits on the Supreme Court or a High Court makes a genuine difference to how the Constitution gets interpreted. A judge's political philosophy — whether they lean toward an active, assertive judiciary or a more restrained, deferential one — can decide the fate of a law passed by an elected legislature. Several actors therefore have a stake in who gets appointed: the Council of Ministers, State Governors, Chief Ministers, and the Chief Justice of India (CJI).

Over the years, a convention took root that the senior-most judge of the Supreme Court would be appointed the next CJI. This convention was broken twice — in 1973, when A. N. Ray was appointed CJI by superseding three more senior judges, and again in 1975, when Justice M. H. Beg was appointed by superseding Justice H. R. Khanna. Both episodes were widely read as the executive rewarding judges seen as more sympathetic to the government of the day, and both remain the standard illustration of how appointment politics can threaten judicial independence. …