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By Ravichandran Iyer
The judgment rendered by the Supreme Court on April 11, 2018 in Asok Pande v. Supreme Court reiterated the salutary position that it is the Chief Justice of India (CJI) alone who is the “Master of the Roster”.
First of all, let’s understand the need for “roster”. American Supreme Court receives about 7,000 requests every year to review cases and actually hears around 100 to 150 cases annually. Supreme Court of Canada receives 700 to 800 applications in a year seeking leave to appeal and grants leave in 65 to 80 cases. Both these Courts do not hear the Leave Petitions in open court and do not give reasons for granting or refusing leave. More importantly, the leave-granted cases are heard by all the judges sitting jointly and not by smaller benches or divisions.
The scenario in the Indian Supreme Court is paradoxical. Apart from writ petitions filed under Article 32, transfer petitions, statutory appeals etc., thousands of Special Leave Petitions are filed every year. All these matters are heard in open courts, both pre and post admission. This had necessitated constituting different Benches and allocating matters to be heard by the judges sitting therein.
It is common knowledge that the CJI (so also the Chief Justices of the different High Courts) being the administrative head of the institution has been customarily performing the important task of constituting and assigning judicial work to different benches. This had developed into a healthy constitutional convention.
Sir Ivor Jennings, a renowned jurist suggested that in order to establish a convention three questions must be asked:
The precedent for the CJI being the Master of the Roster is of historical origin, as can be seen from Section 214 (3) of the Government of India Act, 1935 with respect to the Federal Court of India:
“Subject to the provisions of any rules of court, the Chief Justice of India shall determine what judges are to constitute any division of the court and what judges are to sit for any purpose.”
This has been followed by the successor institution, namely, the present Supreme Court without any interruption. Though Article 145 of the Constitution doesn’t have a similar provision, from the very inception of the Supreme Court, the prerogative of the CJI as a Master of the Roster has been accepted as a sound convention. That apart, the various High Courts have been asserting the similar nature of prerogative power of the Chief Justices thereof from time to time through judicial pronouncements.
In State v. Devi Dayal, [AIR 1959 Allahabad 421], a Division Bench of the Allahabad High Court considered the scope and powers of the Chief Justice under the Constitution and held,
“….It is clear to me, on a careful consideration of the constitutional position, that it is only the Chief Justice who has the right and the power to decide which Judge is to sit alone and which cases such Judge can decide; further it is again for the Chief Justice to determine which Judges shall constitutes Division benches and what work those Benches shall do. Under the rules of this Court, the rule that I have quoted above, it is for the Chief Justice to allot work to Judges and Judges can do only such work as is allotted to them.”
A Full Bench of the Rajasthan High Court in Niranjan Singh vs. State, [AIR 1974 Rajasthan 171] also examined the ambit and scope of the provisions of the Rajasthan High Court Rules, 1952 and held:
“It is therefore the responsibility of the Chief Justice to constitute the Division Courts of Benches. The Judges are required to sit alone or in the Division Benches and, in either case, do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction. This power to allot the work to the Judges cannot be taken away……The Chief Justice has therefore the power “from time to time” to direct that any particular case or class of cases may be heard by a Bench of two or class of cases may be heard by a Bench of two or more Judges even though it may, ordinarily fall to be heard by a single Judge.”
A Full Bench of the Madras High Court in Mayavaram Financial Corporation Ltd. v. The Registrar of Chits. 1991 (2) L.W. 80, opined:
“The Hon’ble the Chief Justice has the inherent power to allocate the judicial business of the High Court including who of the judges should sit alone and who should constitute the Bench of two or more Judges. No litigant shall, upon such constitution of a Bench or allotment of a case to a particular Judge of the Court will have a right to question the jurisdiction of the Judges or the Judge hearing the case. No person can claim as a matter of right that this petition be heard by a single Judge or a Division Bench or a particular single Judge or a particular Division Bench. No Judge or a Bench of Judges will assume jurisdiction unless the case is allotted to him or them under the orders of the Hon’ble the Chief Justice.”
A Division Bench of the Calcutta High Court in the case of Sohan Lal Baid vs. State of West Bengal, [AIR 1990 Calcutta 168] has dealt with this aspect elaborately and observed,
“The foregoing review of the constitutional and statutory provisions and the case law on the subject leaves no room for doubt or debate that once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division courts and has allocated the judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases presented in a formal way for their decision, according to such determination, is acquired.
To put it negatively, the power and jurisdiction to take cognizance of and to hear specified categories or classes of cases and to adjudicate and exercise any judicial power in respect of them is derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other source and no cases which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division Courts till such determination remains operative. Till any determination made by the Chief Justice lasts, no Judge who sits singly can sit in a Division Bench nor can a Division Bench be split up and one or both of the Judges constituting such Bench sit singly or constitute a Division Bench with another Judge and take up any other kind of judicial business.
Even cases which are required to be heard only by a particular single Judge or Division Bench, such as part-heard matters, review cases et.. cannot be heard unless the Judge concerned is sitting singly or the same Division Bench has assembled and has been taking up judicial business under the extant determination. Such reconstitution of Benches can take place only if the Chief Justice specially determines accordingly.”
The views of the different High Courts were reaffirmed by the Supreme Court in the following decisions:
In State of Maharashtra vs, Narayan Shamrao Puranik, AIR 1982 SC 1198:
“The Chief Justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub-s (3) of S.51 of the Act, but inheres in him in the very nature of things.”
In Matheshwari Prasad, (1996) 6 SCC 587:
“It is the prerogative of the Chief Justice to constitute benches of his High Court and to allocate work to such benches, Judicial discipline requires that the puisne Judges of the High Court comply with directions given in this regard by their chief Justice. In fact it is their duty to do so. Individual puisne Judges cannot pick and choose the matters they will hear or decide….”
In State of Rajasthan vs. Prakash Raj (1998) 1 SCC 1, the Supreme Court had to deal with a case where a judge of the Rajasthan High Court who was displeased with the CJ of the High Court for changing the roster resulting in taking away a part-heard matter from him and assigning to a Division Bench which resulted in his initiating contempt proceeding against the CJ. After surveying the caselaw, the Supreme Court categorically concluded:
“(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 allocated 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 can be split up by the Judges constituting the bench themselves and 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.”
In Campaign for Judicial Accountability and Reforms vs. Union of India (2018) 1 SCC 196, a Constitution Bench of the Supreme Court had to deal with role of CJI when a puisne judge passed an order directing placing of a matter before a Constitution Bench of first five senior judges overlooking the CJI. The court made the following important observations:
“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand, it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the Roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand, the Chief Justice is the Master of the Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted” (para 6) ……”Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law.
We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute Benches…….To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible”(para 7)……”An institution has to function within certain parameters and that is why there are precedents, rules and conventions.”(para 8)….. “the law laid down in Prakash Chand has to apply to the Supreme Court so that there will be smooth functioning of the Court and there is no chaos in the administration of justice dispensation system.”(para 10).
Despite the unambiguous statement of law, in the case of Asok Pande vs. Supreme Court of India, in a PIL petition, the petitioner sought Mandamus to the Supreme Court as well as the Allahabad High Court to frame rules providing for a particular manner of bench composition. The three-judge bench speaking through Justice DY Chandrachud succinctly stated the law thus:
“15 Underlying the submission that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that absent such a procedure the power will be exercised arbitrarily. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 reaffirms the position of the Chief Justice of India as the head of the institution.
From an institutional perspective the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. 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 fulfill 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.”
The statement that the CJI is an institution in himself may sound novel, yet that’s the truth. He is first among equals for a reason, as he is the sovereign head of the Indian Judiciary. It is the CJI who administers oath of office to the newly elected President (Article 60). The CJI enjoys a fused role of being the head of the Judiciary as well as the administrative head of the Supreme Court. He may be equal to his colleagues when it comes to rendering decisions in cases heard by him are concerned. But in the administrative side he is second to none.
While in Prakash Singh case (supra) the convention of the CJs of High Courts as the Masters of Roster was affirmed, CJAR case (supra) reaffirmed the convention and held its applicable to CJI as well.
In the recent Asok Pande decision, the convention-based rule is reiterated and restated dispelling any lingering doubts. All these decisions firmly answer Sir Ivor Jennings’ three questions affirmatively and the Constitutional convention is placed at the highest pedestal. When litigants and lawyers move away from the objective of getting justice as the cause demands, to seek an outcome in a particular way, problem in perception arises. Sometimes a few of them start developing a perception that if their matters are heard by particular benches, it may lead to desired result. However, the prerogative of the CJs and CJI cannot be subject to any judicial review on the perceived beliefs as this would create chaos in the administration of justice dispensation system.
The Constitution had reposed faith in the head of the judicial family and let everyone accept the reality.
