On July 6, 2018, the Supreme Court dismissed a Public Interest Litigation filed by veteran lawyer Shanti Bhushan, seeking regulation of the powers of the Chief Justice of India as Master of Roster.
The PIL came to be filed after the tenure of then CJI Dipak Misra came to be dotted by one controversy after another, in relation to the allocation of cases to different Benches.This debate seeking institutional correction and strengthening has come to fore again, in a case which can have serious political and social ramifications.
In what came across as a surprise decision, the Ram Mandir-Babri Masjid title dispute has been placed before a Constitution Bench. The matter has been sent to a Constitution Bench by way of a notice issued by the Supreme Court. However, what is intriguing is that the usual convention for sending a matter to a Constitution Bench has not been scrupulously followed.
As per the usual practice, a five-judge Constitution Bench is constituted pursuant to a speaking order of a three-judge Bench. The three-judge Bench usually records its reasons for sending the matter to a Constitution Bench. However, in the instant case, the last order passed by a three-judge Bench makes no such attempt. That order, which was passed on January 4, is cryptic. It reads,
“Further orders in the matter will be passed 10.1.2019 by the appropriate Bench as may be constituted.”
Though this order does not specifically mention anything about a Constitution Bench, it does drop a vague hint by referring to an “appropriate Bench”. It does not give any reason for why such “appropriate Bench” needs to be constituted. Another reason why it comes across as problematic is that another three-judge Bench headed by ex-CJI Dipak Misra had, on September 27, passed a detailed judgment in the matter turning down a request for reference of the case to a Constitution Bench. The issue addressed in that judgment was whether a 1994 judgment of the Supreme Court in Ismail Faruqui v. Union of India should be revisited.
The Sunni Waqf Board had argued that the said judgment is wrong and needs to be reconsidered. Since the decision in Ismail Faruqui was passed by a Constitution Bench, the Sunni Waqf Board had sought reference of the current case to a larger Bench for reconsidering it. The same had been turned down on September 27. Of course, the fact that a request by one of the parties to refer the case to a larger Bench on a particular ground does not preclude parties from seeking reference on other grounds. However, no such request has been made by any of the parties after the September 27 judgment. The order also does not mention any reason for such reference.
September 27, 2018: The Supreme Court today held that the Ram Mandir-Babri case need not be referred to a Constitution Bench. The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer.
However, though the convention for a smaller Bench seeking reference to a larger Bench does not appear to have been followed, there is one other manner in which it can be done – the exercise of Master of Roster power by CJI. And this finds recognition in the Supreme Court Handbook on Practice and Procedure.
The Handbook on Practice and Procedure, which is available on the Supreme Court website, sets out in detail the constitution and jurisdiction of Benches. Part III of Chapter IV deals with Constitution Benches. Every case involving a substantial question of law as to the interpretation of the Constitution under Article 145(3) or any reference made under Article 143 of the Constitution has to be heard by a Bench consisting of not less than five judges.
Further, every petition calling into question the election of the President and Vice-President under Article 71 of the Constitution read with Part III of the Presidential and Vice-Presidential Elections Act, 1952, has to be heard by a Constitution Bench of five judges. Besides the above, the Chief Justice may, from time to time, constitute a Bench consisting of five or more judges for hearing any other cause, appeal or matter. Thus, the Chief Justice of India as the Master of Roster enjoys a wide power with regard to the formation of Constitution Benches on the administrative side. Even if a matter does not involve a substantial question of law, the CJI is empowered to refer a case to a Constitution Bench, as is evident from Part III.
The Handbook also lays down the procedure with regard to the reference of cases to larger Bench by Division Benches. This can be found in Part IV of Chapter IV. When it comes to a cause, appeal or other proceeding involving a substantial question of law as to the interpretation of the Constitution, as per the proviso to Article 145(3), a Division Bench of two or more judges can refer the same to a larger Bench of not less than five judges. When during the course of hearing, a Division Bench is of the opinion that a matter has to be heard by a larger Bench, it has to refer the case to the Chief Justice, who shall then constitute a larger Bench to hear the matter.
After the reference is answered by a larger Bench, wherever required, the case shall be placed before the Chief Justice for listing before an appropriate Bench for hearing and decision in accordance with the opinion of the larger Bench. What is interesting is that the power of CJI to constitute Constitution Benches and the procedure for reference of cases by Division Benches to larger Benches are in two different parts. While the former is in Part III, the latter finds mention in Part IV.
This brings us to the question of whether the two parts – Part III and Part IV – are mutually exclusive or whether Part IV is a method for implementation of Part III? In my opinion, the two are mutually exclusive and consequently, the CJI enjoys very wide powers in his administrative capacity under Part III (iii) regarding the formation of Constitution Benches. He can from time to time, constitute a Bench consisting of five or more judges for the purpose of hearing “any other cause, appear or matter.”
Does this mean that he can pull a matter from a Bench hearing a case and post it before a Constitution Bench?
At least that is what the CJI seems to have done in the instant case and he has the backing of Part III (iii) of Chapter IV of the Supreme Court Handbook on Procedure.
In the alternative, it can be argued that the order passed by the three-judge Bench on January 4 was a reference order. Hence, the CJI was exercising his powers under Part IV pursuant to an order of a three-judge Bench though that order does not make any mention of a larger Bench or reference.
Either way, CJI Ranjan Gogoi is treading on a slippery slope, one on which CJI Dipak Misra slipped many a time, but was eventually rescued by a favourable Bar and media. The issue of regulation of the Master of Roster power might prop up once again in light of the reference of the Ram Mandir case to a Constitution Bench.
Further, while it is not correct to say that CJI Gogoi nullified the judicial order of the three-judge Bench by way of an administrative order (since the judicial order of September 27 pertained to the question of the correctness of Ismail Faruqui and reference to Constitution Bench was only a method to revisit the same), he might have reignited the debate on Ismail Faruqui since the Constitution Bench can now take a fresh call on that judgment.
CJI Gogoi definitely has a task ahead.
Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.