July,18,2015: 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’.
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.
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?
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.
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