NEW DELHI , APR 13,
The Supreme Court on Friday agreed to examine a petition filed by former union law minister Shanti Bhushan to declare that the authority of the Chief Justice of India as ‘master of roster’ should not be reduced to an absolute, singular and arbitrary power.
A Bench of Justices A.K. Sikri and Ashok Bhushan asked Attorney-General K.K. Venugopal to assist the court and posted the next hearing for April 27.
The Bench will hear the petition despite two separate judgments by the Supreme Court in November 2017 and April 9, 2018 upholding the Chief Justice of India’s complete administrative authority to allocate cases and constitute Benches. Both judgments were pronounced by Benches led by Chief Justice of India Dipak Misra. The April 9 verdict called the CJI an “institution in himself”.
In his petition, Mr. Bhushan said such “absolute discretion” cannot be confined in just one man, the Chief Justice of India.
Senior advocate Dushyant Dave, for Mr. Bhushan, referred to the Judges case of 1998 to argue that the Supreme Court itself has interpreted the term ‘Chief Justice of India’ to mean the entire Collegium for the purposes of appointments and transfers of judges.
Mr. Dave argued that certain “sensitive” cases were allocated to Benches as per the special order of the CJI. It is the allocation of these core cases that require the collective attention of the Collegium and they should not be left to the “absolute discretion” of the CJI, said Mr. Dave.
“Be he ever so high, he is not above the law… Why is it that certain matters are presented before certain judges. There are instances in the past, and unfortunately, there will be hundreds to come,” Mr. Dave submitted.
Justice Sikri observed it was “not feasible” for the Supreme Court Collegium of the Chief Justice of India and his four senior most to convene two or three times every week to allocate ‘sensitive’ cases among various judges.
Justice Bhushan told Mr. Dave that “what may be ‘sensitive’ for you may not be sensitive for us (the Supreme Court)”.
“Prima facie, I dont think the Collegium should be treated as the Chief Justice of India,” Justice Sikri said.
“But if My Lord remembers, Dr. B.R. Ambedkar had said the CJI may also be a man of many failings,” Mr. Dave replied.
Both judges said a procedure for allocation of cases to judges is an “in-house” affair. The judges themselves should evolve a self-governing mechanism. “Is this issue even justiciable?” Justice Sikri asked Mr. Dave at one point.
But senior advocate Kapil Sibal rose to answer, saying, “If you do not desire a procedure to be evolved (for transparent allocation of sensitive cases) public faith will be lost. You say you cannot decide the question judicially and you also say you will not do it administratively… This is unacceptable”.
“We are troubled. This is painful. We are not against any individual, but the way it (Supreme Court) is being handled today. We respect the institution and do not want to attribute any motives,” Mr. Sibal added.
Mr. Sibal said four Supreme Court judges had highlighted the issue of selective allocation of cases to preferred Benches in a press conference on January 12. “We will not go into that. Don’t bring that here for many reasons and obvious reasons,” Justice Sikri firmly responded.
Mr. Dave said the April 9 judgment declared the Supreme Court as an “independent safeguard” of democracy. “We are now saying that the safeguard is compromised,” Mr. Dave said.
In his petition, Mr. Bhushan asked the Supreme Court to “clarify the administrative authority of the Chief Justice of India as the master of roster and for the laying down of the procedure and principles to be followed in preparing the roster for allocation of cases”.
“Master of roster cannot be unguided and unbridled discretionary power, exercised arbitrarily by the Chief Justice of India by hand-picking benches of select Judges or by assigning cases to particular judges,” the petition said. “The collective opinion of a collegium of senior judges is much safer than the opinion of the Chief Justice alone.”
