The Supreme Court today decided to examine a PIL filed by former law minister Shanti Bhushan challenging the existing roster practice of allocation of cases by the Chief Justice of India (CJI).
A bench comprising Justices AK Sikri and Ashok Bhushan sought the assistance of Attorney General K K Venugopal and Additional Solicitor General Tushar Mehta in dealing with the PIL stating that the CJI cannot exercise arbitrary power in allocation of cases.
Bhushan’s petition came up for hearing a day after a bench headed by Justice Chelameswar, the most senior judge after the CJI, refused to order its listing saying that he did not want his order to be reversed again in 24 hours. After Chelameswar’s refusal, Bhushan’s son and advocate Prashant Bhushan mentioned the matter before a bench headed by the CJI which had allocated it for hearing before a bench headed by Justice A K Sikri, who is number six in seniority. The apex court will now hear the matter on April 27.
Democracy and discretion
The bench of Justices Sikri and Bhushan said it has already held that the CJI is the ‘master of roster’. The bench was referring to the apex court’s April 11 verdict, which said the Chief Justice of India is the “first among equals” and occupies a unique position with the “exclusive prerogative” to allocate cases and set up benches to hear cases.
At the outset, senior advocate Dushyant Dave, appearing for Shanti Bhushan, said the petition raises the substantial question of interpretation of constitutional provisions and also questions how matters are being listed in the apex court contrary to the Supreme Court Rules.
Dave claimed the CJI was exercising his power only in in exceptional matters but the apex court registry should be bound by its own rules. "In democracy there is nothing called absolute discretion," he said, questioning the manner in which some sensitive cases were assigned to particular benches in the top court. He also clarified that they were not against any individual and don't propose to make any personal allegations against anyone.
The bench, however, said it would be "very difficult" to decide which was a sensitive matter and which was not. "As far as CJI being the 'master of roster' is concerned, there is no dispute. In a way you are challenging the manner in which this power is exercised," the bench said.
Senior advocate Kapil Sibal, who was also in the court room, said they had come to the court "with a heavy heart". "The problem is that we are troubled. Truly troubled. We are not against any individual. This is the highest court of this land. We have to respect the institution. We are troubled how it is being handled today. We are not attributing any motives,” Sibal said.
However, the bench took objection when Bhushan’s counsel made an attempt to bring to its notice the unprecedented January 12 press conference held by four of the court’s most senior judges—Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph—who had accused Chief Justice Dipak Misra of arbitrarily allocating cases. “We are not going to go into it. We are not concerned with it for many reasons and obvious reasons. Don’t say all this,” the bench said.
CJI named
When Shanti Bhushan filed the PIL, Prashant Bhushan had written to the secretary general of the apex court stating that the matter should not be listed before a bench that includes the CJI. He said in the letter that it would be appropriate that the petition be listed before three most senior judges of the top court for allocating it before an appropriate bench.
In the petition, the CJI has been named as one of the respondents along with the registrar of the Supreme Court.
In his PIL, Shanti Bhushan has stated that the “master of roster” cannot be unguided and unbridled discretionary power, exercised arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to particular judges. It said the CJI’s authority as master of roster is “not an absolute, arbitrary, singular power that is vested in the chief justice alone and which may be exercised with his sole discretion”.
Such an authority should be exercised by the CJI in consultation with the senior judges of the Supreme Court in keeping with the various pronouncement of this court, it said.
The petition assumes significance in light of the January 12 press conference when the four judges said the situation in the top court was “not in order” and many “less than desirable” things have taken place.