New Delhi: A two-judge bench of the Supreme Court, comprising Justice A.K. Sikri and Justice Ashok Bhushan, on Friday agreed to hear in detail, the petition filed by senior advocate, Shanti Bhushan, seeking to regulate the exercise of the powers of the Chief Justice of India as the master of the roster, by clear and transparent rules and procedures. The bench sought the assistance of Attorney General for India, K.K. Venugopal and the Additional Solicitor General, Tushar Mehta, for the purpose, and posted the matter for further hearing on April 27.
The petition seeks reading of the opinion of the CJI as master of roster as the collective opinion of the collegium of five senior-most judges of the Supreme Court.
In particular, the petition prays for directions to interpret the words “Chief Justice of India” as mentioned in the Supreme Court Rules, 2013 and the Supreme Court Handbook on Practice and Procedure and Office Procedure, as the “collegium of five senior judges”.
The roster is prepared by the registrar under the orders of the CJI. It may contain general or special instructions regarding assignment/allocation of work to a bench and includes allocation of work of a bench, on account of non-availability, to another bench. In order to meet contingencies, the CJI may, from time to time, direct the registrar to prepare roster instructions or amendments for re-allocation of judicial work.
On Friday, it is this discretionary power which came under scrutiny before the bench. As Dushyant Dave submitted to the bench:
“Our concern is in respect of the special matters of sensitive nature, like those which may have an impact on the survival of democracy, for which the Registry seeks directions of the CJI. It is a settled position that in a democracy, there is no concept of absolute discretion; any such power is subject to checks and balances.”
The petition lists 14 instances of allocation of sensitive matters to specific benches, on the direction of the CJI, as the master of roster. These include the medical college bribery matter, the appointment of Rakesh Asthana as the CBI Special Director and the petitions seeking impartial probe into Judge Loya’s mysterious death in 2014.
Although the listing of the matter before the bench of Justice Sikri and Justice Bhushan caught the petitioner and his counsels Dushyant Dave and Kapil Sibal by surprise, they did not make it an issue, and began to argue the case on merits. They tried to convince the bench that the petition did not become infructuous because of the court’s previous rulings confirming the role of the CJI as the master of the roster.
Only on April 11, a three-judge bench, presided by the CJI himself had ruled that in the allocation of cases and the constitution of benches the CJI has an exclusive prerogative.
It held:
“As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution, is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less.”
However, the April 11 judgment created considerable unease, as the CJI, who ought to have recused from hearing this petition in view of the apparent conflict of interests, did not do so. He reserved the judgment after hearing the petitioner for less than five minutes, on April 9, without issuing notices to the respondents, the Supreme Court and the Allahabad high court.
The listing of Shanti Bhushan’s petition before Justice Sikri follows the refusal of Justice J. Chelameswar to hear it or assign it to another bench, on April 12.
Defects and their removal
The listing of the petition before Justice Sikri reveals another curious episode.
In a separate letter addressed on April 3 to the Secretary General of the Supreme Court, advocate Prashant Bhushan, who filed the petition on behalf of Shanti Bhushan, had requested that it relates to the proper interpretation and implementation of the powers of the CJI as the master of the roster, for deciding and allocating benches.
“Hence, the Hon’ble CJI has been impleaded in person as a respondent in this petition. Though this is a public interest litigation, it can’t be heard by a bench that includes the Hon’ble Chief Justice of India. It would also be improper for the Hon’ble Chief Justice of India to exert his power as master of roster to allocate a bench in this matter”.
Prashant Bhushan therefore suggested that it would be appropriate that this matter be placed before the three senior most Judges of the Supreme Court to obtain their instructions on how this petition is to be listed.
Although Shanti Bhushan’s petition was filed on April 2, the Supreme Court registry notified its defects only on April 7. Thereafter, the defects were cured by the petitioner, and it was submitted for refiling on April 10.
The petition was not registered and numbered till April 12, because the petitioner refused to cure certain defects pointed out by the registry. One of these pertained to making the CJI as respondent no.2. In response, Prashant Bhushan explained in a letter to the Registrar, drawing his attention to Paragraph 14 of the petition, as follows:
“…It is respectfully submitted that in recent months there have been number of instances in which such powers have been exercised with legal malice by abusing the administrative authority conferred under the Constitution, the Rules, the Handbook of Procedure and the convention on the concerned Respondents. As a result, the matters are being listed in a completely arbitrary and unjust manner so as to defeat interests of justice thereby undermining the administration of justice.”
Prashant Bhushan thus wrote to the Registrar that as the petition questions the CJI’s own role as master of roster and the exercise of his power in an arbitrary manner as has been highlighted in the petition through the listing of various cases, the CJI has been made a party in the writ petition.
He pointed out to the registry that in any case where there is an allegation of malafide by a party, the party is made a respondent. “This petition points out the malafide abuse of power by the Hon’ble Chief Justice of India in allocating cases selectively to certain benches. Instances of this abuse of power have been mentioned in the petition. Hence he is made a party to this petition in person”, Prashant Bhushan wrote to the registry.
The registry also asked the petitioner to cure the defect with regard to non-furnishing of information relating to cause of action and injury to the public, to justify the writ petition.
In response, Prashant Bhushan drew the registry’s attention to Paragraph 15 of the petition, with excerpts as follows:
“This petition raises issue as to extremely disturbing trend of listing matters subjectively and selectively as clearly discernible from the available data of matters recently filed and listed before only certain Hon’ble Benches. This trend reflects serious erosion of independence of the judiciary, namely, this Hon’ble Court in deciding matters objectively and independently by resorting to the method of favoured listings. As a result, justice appears to be skewed and in many cases justice may even stand denied. But what is more important is that the powers being exercised by the Hon’ble Chief Justice and the concerned Registry officials clearly reflect a pattern of favouritism, nepotism and forum shopping”.