The Recent Elevations to The Supreme Court of 7 Judges is interesting. None of them shall be The Chief Justice of India after Hon’ble Justice Dr. Chandrachud. Seniority is neither based on age nor on experience. It is purely accidental. The following is an extract from A.R. Antulay, Appointment of a Chief Justice, (Popular Prakashan, 1973). The book was gifted to CJI Ray by The Former Chief Minister of Maharashtra. There is evidence of the same.
“Many Judges retire without attaining the status of the Senior-Most; most without becoming Chief Justice. The fact that they reach the age of retirement without acceding to the Office of The Chief Justice means those other Judges who are younger in age reach the position depriving their elders. Age is therefore no ingredient of seniority.
Nor has it been based on experience. S.M. Sikri when appointed Chief Justice had hardly 7 years Judicial Experience and yet he was the Senior-Most; whereas A.N. Ray with 14 years’ standing as a Judge at that time, was rated a Junior. Seniority is, therefore, not based on experience either. As under stood in the context of the Supreme Court, seniority is purely accidental.
When a Judge of The Supreme Court is made by the Constitution so independent of The Chief Justice can it be said that the pressure of The Chief Justice may work adversely against the independence of other Judges of The Supreme Court in the discharge of their Judicial Functions? After the Golaknath Case was decided by The Supreme Court under the leadership of Chief Justice Subba Rao, Setalvad happened to meet him. Setalvad narrates: “When I happened to meet Chief Justice Subba Rao and Justice Hidayatullah and Wanchoo at a dinner some time later, I told them a decision involving such far-reaching consequences should not have been arrived at by so slender a majority. The Chief Justice’s answer was that they had tried their best to have a larger majority, but that they could not succeed.” Inspite of efforts on the part of Chief Justice Subba Rao, he could not succeed in getting more votes on his side. This obviously proves that the other Judges could afford to ignore the persuasive efforts of The Chief Justice. K. Subba Rao, in his article under the caption “The Supersession of Judges” published in The Statesman on May 14, 1973 branded the appointment of The Chief Justice of India as unconstitutional. Neither Subba Rao’s interpretation is correct, nor is his convention ‘consistent’ with his misinterpretation; nor indeed does he have a true concept of convention nor indeed has there been any convention. The whole of Subba Rao’s discourse is but a fiction.”