SC judge seeks clarity on
constitutional role of CJI, asks if he represents the entire judiciary
(The Hindu-Updated: July 18, 2015 03:16
IST)
A Supreme Court judge has asked the
government whether the Chief Justice is actually the ‘Chief Justice of India’
or the ‘Chief Justice of the Supreme Court of India’, triggering a debate.
The question came from Justice Kurian Joseph,
one of the five judges on the Constitution Bench deciding the crucial issue
whether the political class, through the National Judicial Appointments
Commission (NJAC), should be given an equal role in the appointment of judges,
including the Chief Justice of India. The query, during the final NJAC hearing
on Wednesday, stems from the inconsistency in the way the Constitution
identifies the Chief Justice in two different places.
In Schedule 3 of the 65-year-old
Constitution, which deals with ‘Forms of Oath and Affirmations’, the Chief
Justice takes oath as the ‘Chief Justice of the Supreme Court of India’. But
under Article 124 of the Constitution, the President's Warrant of Appointment
identifies him as the ‘Chief Justice of India’.
The question quintessentially delves into the
basic constitutional identity of the Chief Justice – is he the Chief Justice of
the institution of the Supreme Court of India and a ‘first among equals’ among
the Supreme Court judges. Or, is he the Chief Justice of the Republic of India,
representing the entire judiciary of the country?
Responding to a query from Supreme Court
Judge, Justice Kurian Joseph on whether the Chief Justice is actually the
'Chief Justice of India' or the 'Chief Justice of the Supreme Court of India',
Attorney-General Mukul Rohatgi said he would look into the question. Senior
advocate Fali Nariman said the matter required serious thought.
Oath of Office
Legal experts say the confusion lies in the
fact that the Constitution does not provide a separate oath for the Chief
Justice as in the case of the President under Article 60 and the Vice-President
in Article 69.
All judges in the Supreme Court take a common
oath prescribed in Schedule 3 of the Constitution, which begins as “I, A.B.,
having been appointed Chief Justice (or a Judge) of the Supreme Court of
India...”
Former Additional Solicitor General and
senior advocate Bishwajit Bhattacharya said there was no ambiguity and there
was hardly a need to administer a separate oath for the Chief Justice.
“When he takes oath as the Chief Justice of
the Supreme Court, he also takes on the constitutional identity of the Chief
Justice of India,” he said.
Mr. Bhattacharya, who has challenged the NJAC
Act, said Justice Joseph may be subtly pointing out to the government that the
Chief Justice of India is part of the basic structure of the Constitution under
Article 124, and the new NJAC law has relegated him to one among six members of
the Commission.
Courtesy: C H Mahadevan
