Coming straight to the key point, the Supreme Court just recently on July 6, 2018 in the landmark case of Shanti Bhushan v Supreme Court of India through its Registrar and another in Writ Petition (Civil) No. 789 of 2018 (Arising out of Diary No. 12405 of 2018) refused pointblank to declare that the function of allocating cases and assigning benches should be exercised by the collegium of five senior Judges instead of the Chief Justice of India. This was what the petitioner wanted but which he failed to get. The petition which was filed by Shanti Bhushan who is an eminent and senior advocate of Supreme Court and also is the former Union Law Minister seeking such relief in his PIL were not acted upon by the Bench of Apex Court comprising of Justice AK Sikri and Justice Ashok Bhushan.
Truth be told, in the writ petition Shanti Bhushan seeks the Supreme Court to clarify the administrative authority of the Chief Justice of India (CJI) as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocation of cases as mentioned in para 2 of the judgment. Shanti Bhushan had strongly contended that concentration of unbridled powers on a single person was an anathema to democracy. He, therefore, sought an end to this.
As it turned out, though the petition conceded that the CJI was the master of the roster as settled by convention, it sought reforms by vesting the power of determination of roster to the collegium instead of CJI alone. The petition also stated that this power was abused in certain instances with legal malice. This abuse could be checked only by inserting the necessary reforms.
At the outset, the Apex Court Bench comprising of Justice AK Sikri and Justice Ashok Bhushan expressed its welcome tone regarding the issues that were raised in the petition. The Bench stated that “matter had not been treated as adversarial in nature”. Besides, the Apex Court made it clear that it did not doubt the bona fides of the petitioner and affirmed his respectability.
Going forward, the petitioner argued that the role of CJI as the ‘master of roster’ was not based on any constitutional provision. Justice AK Sikri expressly acknowledged that the Constitution is silent on the role of the Chief Justice as the ‘Master of the Roster’. However, it was added that this role was “based upon healthy practice and sound conventions which have been developed over a period of time and that stands engrafted in the Supreme Court Rules.
Simply put, the Constitution Bench decision in Campaign for Judicial Accountability and Reforms v. Union of India & Anr (2018) 1 SCC 196 Writ Petition (Cri) No. 169 of 2017 famously known as CJAR judgment was followed by the Bench. The CJAR judgment had affirmed the powers of CJI as the master of the roster. In CJAR, the Constitution Bench applied the decision in State of Rajasthan v Prakash Chand (1998) 1 SCC 1, which was rendered in the context of powers of Chief Justice of High Court. It was said in CJAR ruling that the same principle was applicable to the Supreme Court.
To be sure, the Bench also extensively relied upon the decision in Asok Pande case titled Asok Pande v Supreme Court India through its Registrar and Ors., (2018) 5 SCC Scale 481. Asok Pande’s PIL, among other things, had sought a declaration that allocation of business should be done by a collegiums of three senior Judges. The CJI-led Bench of three Judges refused the prayer on two counts. Firstly, it was held that as per Supreme Court Rules, assignment of cases had to be done by CJI. The Supreme Court Rules are framed by the Supreme Court in exercise of powers under Article 145 of the Constitution. A direction cannot be issued to a rule-making authority to frame rules in a particular manner. Secondly, it re-affirmed the principle that CJI was an institution in himself and that his administrative power to allocate cases cannot be delegated to Collegium. It was held that the present Bench was bound by the decisions in CJAR and Asok Pande’s case.
Chief Justice cannot be substituted with the collegium
It would be pertinent to mention here that the pivotal argument of the petitioner was that “Chief Justice of India” was interpreted to mean the collegiums in the Second Judges Case. The petitioner relied on this observation in the Second Judges case – “it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. Therefore, extrapolation of that principle was sought with regard to CJI’s powers as the administrative head.
To state the obvious, the argument was not accepted holding that the Second Judge case was rendered in the context of power exercised by CJI under Article 124 for the appointment of judges. It was held that the power to allocate business was altogether different, as it is an administrative function flowing from Article 145 of the Constitution. This kind of system which is devised for the appointment of Judges cannot be replicated when it comes to the role of the Chief Justice as Master of Roster. We have to keep in mind that the Chief Justice, as the head of the Supreme Court of India, and the Chief Justices of the High Courts, have to perform many other functions, on the administrative sides in their capacities as Chief Justices. Framing of the Roster and constituting the Benches is one among them. In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of the Supreme Court, or for that matter the High Courts, observed the judgment in that regard.
It cannot be lost on us that Justice Ashok Bhushan’s judgment had discussed the rationale behind having a system of CJI allocating cases. Referring to State of Uttar Pradesh and Others Vs. Neeraj Chaubey and Others, (2010) 10 SCC 320, it was observed that “in event the distribution is not done by the Chief Justice of India, it may generate internal strife on account of hankering for a particular jurisdiction or a particular case”. “If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case” – this observation in Neeraj Chaubey’s case was extracted in Justice Bhushan’s judgment.
Truly speaking, both the Judges – AK Sikri and Ashok Bhushan accepted the submission of Attorney General KK Venugopal that allocation of business by collegiums will affect the day to day functioning of the Court. When it comes to assigning the cases to a particular Bench, it has to be undertaken by the Chief Justice on daily basis in contrast with the meetings of the Collegium for the purpose of appointment of Judges, which is infrequent. Thus, meeting of Collegium for the purpose of assigning the cases to a particular Bench on daily basis is clearly impracticable, Justice AK Sikri observed in that regard. However, both the Judges held that the listing of cases should be strictly in accordance with the Supreme Court Rules, and to that extent they agreed with the petitioner.
Judicial Reforms the Moral Responsibility of Chief Justice
To say the least, the judgment of Justice Sikri elaborated on the role of Chief Justice of India. It was stated that the Chief Justice of India was “first amongst the equals” when it comes to his judicial functions, implying that his opinion does not carry any added weightage over his colleagues. Also, when a case is allotted to a bench, that bench will have complete dominion over the case, without having to act as per the directives of any external judges. Further, Chief Justice of India carries the “leadership of the Court” acting as the spokesperson and representative of the judiciary in its dealings with the Executive, Government and the Community. For this purpose, the ‘Chief Justice’ has a general responsibility to ensure that the Court promotes change and reform as appropriate. The judicial reforms, which is a continuing process in order to ensure that there is real access to justice, also becomes the moral responsibility of the ‘Chief Justice’.
Be it noted, both the Judges commented on the qualities to be possessed by a Judge. According to Justice Sikri those are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of the law, moral courage or fortitude, and a total commitment that justice should be administered according to law. Justice Ashok Bhushan quoted the words of former CJI Venkatachaliah that the life of a Judge does not really call for great acts of self-sacrifice; but it does insist upon small acts of self-denial almost every day, and added that only the inner strength of Judges can ensure judicial independence. Finally, Justice Sikri signed off his judgment with the following quote from Edmund Burke – “Applaud us when we run; console us when we fall; cheer us when we recover; but let us pass on – for God’s sake, let us pass on”. No doubt, this is quite apt for the times which the Supreme Court of India currently finds itself in.
It would be imperative to mention here what para 38 of this landmark judgment says. Para 38 says that, “Learned counsel for the petitioner has also referred to and relied on various international practices. During the submission he has referred to practices pertaining to case assignment in United Kingdom Supreme Court, High Court of Australia, Supreme Court of Canada and the practice in United States Supreme Court. The practices and function of each Court are different which has been evolved by time looking to particular background and set of facts. The practice of a Court ripens into a convention by passage of time and rich heritage of conventions are time tested which practice and conventions of this Court have ripened with time which need not be tinkered with or imitated from different international practices of different Courts. As noted above, the law laid down by this Court is that: the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice. We, thus, cannot import the international practices in the constitutional and statutory scheme of this Court.”
Transparency in allocation of cases and formulation of Benches
The learned counsel for the petitioner laid much emphasis that the procedure and manner of allocation of cases and formulation of Benches should be one which is accessible to public and there should be objective criteria of exercise of the power by the Chief Justice. It was also submitted that the manner and procedure for exercising the power should be put in public domain to allay any kind of misapprehension and to instill confidence in public in general. To this, the Apex Court Bench responded by pointing out that, “We have already noticed above that the manner and procedure for transaction of Court work is elaborately dealt with Supreme Court Rules, 2013.
Furthermore, in para 40 of this landmark judgment, it was pointed out that, “Further, handbook on practice and procedure and office procedure also laid down sufficient guidelines and elaboration of the procedure which is to be followed in this Court. Thus, for transaction of business of the Court, there are elaborate rules and procedure and it cannot be said that procedure and practice of the Court is unguided and without any criteria.” Para 41 further goes on to say that, “We are, however, not unconscious of the fact that working of any system is a continuous process and each and every organisation endeavours to improve the working of its system suitable to circumstances and the need. Improvement of functioning is always a goal of every system and all organizations endeavour to improve the system, which is always a welcome step. The Supreme Court cannot be an exception to above objective and goal.” The Bench thus welcomed ways to improve the functioning of the system.
All said and done, this landmark judgment makes it abundantly clear that it is the Chief Justice of India who is the Master of the Roster. Justice Ashok Bhushan in para 16 of this landmark judgment sought to make the picture on this more clear by pointing out that, “This Court has recorded its conclusion in Para 59, which is to the following effect:-
“59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment:
(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
(3) That the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the judges constituting the bench themselves and one or both the judges constituting the one or both the judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.
(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part heard case.
(6) That the puisne judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
(7) That no judge or judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.
Having said this, it must also be pointed here that Para 17 further reveals about Supreme Court rulings that, “There are series of judgments reiterating the same view as expressed by this Court in State of Rajasthan (supra). In an earlier judgment, Union of India and Another Vs Raghubir Singh (Dead) By LRs. Etc., (1984) 2 SCC 754, a Constitution Bench of this Court noticed that as a general rule of practice and convenience, the Court should sit in Divisions and each Division being constituted of judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention.” Further, in para 18 of this landmark judgment, it is pointed out that in D.C. Saxena Vs Hon’ble The Chief Justice of India, (1996) 5 SCC 216, this Supreme Court made it amply clear that it is the Chief Justice’s prerogative to constitute benches and assign the judicial work and the judicial business would not hinge on the whim of a litigant.
Thus we see that the Apex Court Bench comprising of Justice Ashok Bhushan and Justice AK Sikri leaves no room of doubt that it is the Chief Justice who is the master of the roster and decides the allocation of cases and not the 5 seniormost Judges of the Supreme Court as was sought by the petitioner! It was also brought out by Justice AK Sikri in Para 12 of this landmark judgment that, “There is no dispute, as mentioned above, that ‘Chief Justice’ is the Master of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. The petitioner has been candid in conceding to this legal position. He himself has gone to the extent of stating in the petition that this principle that ‘Chief Justice’ is the Master of Roster is essential to maintain judicial discipline and decorum and also for the proper and efficient functioning of the Court.” Very rightly said! There can be no denying or disputing it!
But it was also made amply clear in this landmark judgment by Justice AK Sikri in Para 24 that, “The power of the ‘Chief Justice’ does not extend to regulate the functioning of a particular Bench to decide cases assigned to him once the cases are allocated to that Bench. A Bench comprising of puisne Judges exercise its judicial functions without interference from others, including the ‘Chief Justice’, as it is supposed to act according to law. Therefore, when a particular matter is assigned to a particular Bench, that Bench acquires the complete dominion over the case.” It also mentioned the relevant rules in this regard as pointed above! In conclusion, this landmark judgment sets to rest all the key questions that were raised so brilliantly by eminent and senior Supreme Court lawyer Shanti Bhushan by filing the PIL which ultimately led to the culmination of this landmark judgment!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.