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The Supreme Court today reserved its verdict in the Public Interest Litigation filed by Senior Advocate Shanti Bhushan seeking to put a check on the powers of the Chief Justice of India as Master of Roster.
Senior Advocate Dushyant Dave and Attorney General KK Venugopal made submissions before a Bench of Justices AK Sikri and Ashok Bhushan.
Dushyant Dave for Shanti Bhushan
The thrust of Dave’s submission was that neither Article 145 of the Constitution nor the Rules made pursuant to it vest the Master of Roster power with CJI. He said that the same was evident from the language used in Article 145 which uses the term “Supreme Court”.
“My submission is that the CJI being a Master of Roster has been given a go-by, by the Constitution though that has been lost sight of.”
He then cited Article 130 which lays down that Supreme Court shall sit in Delhi or such other place as the Chief Justice of India, may with the approval of the President of India decides. This provision expressly uses the term Chief Justice.
“Thus when they wanted Chief Justice to exercise the power, they have expressly said so”, submitted Dave.
He then referred to the Supreme Court Rules framed pursuant to Article 145 arguing that the Rules also do not vest with the CJI, either expressly or implicitly, the power of Master of Roster. On the contrary, the Rules suggest that the power is with the Registrar.
“The Rules are silent on whether the CJI can assign benches or list cases.”
Justice Ashok Bhushan said that if that is the case, things would become unworkable.
Dave’s response was that the full court or the Collegium of judges should exercise the function.
“Your Lordships can sit together every year or every session and decide. Once the full court or the Collegium decides the roster at the beginning of every session, then the matters must be allotted by the computer as per the roster and there should be no human intervention.”
He also submitted that though the language of Article 145 pointed to full court, if that submission is not accepted then the alternative submission is that the Court is bound by the SP Gupta judgment as per which CJI would mean Collegium.
Dave then referred to the Handbook of Practice and Procedure stating that it was the Handbook which provides that sensitive matters will be placed before the CJI for listing. This, he argued, destroys the very idea behind having computer allocation. It was his contention that the Handbook did not confirm to the Rules or Article 145. But the problem, he said was that the Registry follows the Handbook strictly.
He then argued that constitution of Benches and listing of matters is an extremely sensitive area and the Court should devise a procedure through a judicial decision so as to avoid arbitrariness. Cherry-picking of matters and selective assignment of cases has got the media and jurists talking, he said.
“We cannot allow the integrity of the institution to be affected by indiscretion of Registry. It is not that the CJI has unbridled powers.”
Dave also said that assignment of Rakesh Asthana case, CJAR case etc are examples.
“We are not questioning those orders now. We are only trying to build a foundation for our case that there is something seriously wrong with the manner of listing of cases.”
It was also Dave’s argument that in many cases, even the guidelines laid down in the Handbook were not followed by the Registry.
Interestingly, Dave also argued that the Supreme Court judgments and orders are equally binding on the Supreme Court. Citing Article 141, he said,
“Law declared by the Supreme Court shall be binding on all courts within the territory of India, including the Supreme Court. The administrative side of the Supreme Court is bound by the judicial decisions of the Supreme Court”, he said in an obvious reference to the CJAR and Kamini Jaiswal case.
Dave said the Bench could consider referring the matter to a larger Bench since the issue is “fundamental to the existence of the institution”.
Attorney General KK Venugopal
The Court had sought the opinion of the Attorney General (AG) during the last hearing. The AG’s submission was that the Chief Justice of India is the Master of Roster with the exclusive prerogative to allocate cases and assign Benches. His argument was based largely on the judgments in State of UP v. Neeraj Choubey and State of Rajasthan v. Prakash Singh.
“If as they suggest, the top five judges have to sit every week to decide the cases, it might be an unending exercise. That is why it has been left to one person, the CJI”, he said.
Adverting to State of UP v. Neeraj Choubey, Venugopal said that CJI, as master of roster, has full powers to allocates cases and assign work to judges.
“He has the power to decide which case should go where. It is essential for maintaining judicial discipline. If not, the machinery of the court would collapse”, submitted Venugopal.
Responding to the submission of Dave that the CJI should be construed as Collegium as laid down in SP Gupta’s case, Venugopal stated,
“The Collegium deals with appointment of judges. The exercise of master of roster is different from appointment of judges. Here, they are personally involved as they might be hearing these cases. So, if the Collegium collectively decides, then one judge might say “put me on that Bench” etc. This will lead to utter chaos. I am surprised that this argument has been raised.”
The Court then proceeded to reserve its verdict.