The provision is under the heading “Establishment and constitution of the Supreme Court”, and in the relevant part, it says that “There shall be a Supreme Court of India consisting of a Chief Justice of India and….”
That the Constitution recognises the CJI’s prominent role in higher judicial appointments is stating the obvious. He is, unlike the United States (where the Chief Justice is the Chief Justice of the US Supreme Court) the Chief Justice of India. This prominent role as “head of the judiciary” or the judicial family, if one may use a well worn term, was underlined by a Constitution Bench of the Supreme Court in K. Veeraswami’s case, where the Court, by the majority and concurring judgments held that members of the higher judiciary (High Courts and the Supreme Court) are covered by the Prevention of Corruption Act, 1988 and can be prosecuted, provided the CJI is consulted beforehand, and consents to that course. Mr. Justice J.S. Verma (who later held the office of Chief Justice of India with distinction) dissented; he held that the Prevention of Corruption Act, 1988, according to its scheme, as existing, does not apply to constitutional functionaries, such as Judges of the High Courts, Judges of the Supreme Court, the Comptroller and Auditor General and the Chief Election Commissioner. Though not a “vertical” superior (to borrow a phrase from the dissenting opinion in K. Veeraswami) nevertheless the CJI discharges various other functions. The question is whether those are exempted from the Act.
Now, there cannot be any two opinions about the reality that the Chief Justice of India performs a multitude of tasks, specifically assigned to him under the Constitution and various enactments; he is involved in the process of appointment of Judges of High Courts, Chief Justices of High Courts, appointment of Judges of Supreme Court, transfer of High Court Judges and so on. Besides, he discharges administrative functions under various enactments or rules, concerning appointment of members of quasi judicial Tribunals; this may be by him, or nominees (other Supreme Court Judges) appointed by him. He is also involved in the administration of legal aid, and heads policy formulation bodies, under law, in that regard, at the national level; he heads the judicial education programme initiative, at the national level. It is quite possible therefore, that the Chief Justice, for convenience maintains a separate office or establishment. However, the petitioners did not urge about these aspects, or bring any other facts to this Court’s notice.