In January, four senior-most judges of the Supreme Court – J Chelameswar, Ranjan Gogoi, MB Lokur and Kurien Joseph – held a dramatic press conference at which they raised several questions about the manner in which Chief Justice Dipak Misra was functioning. Among these was the claim that senior judges were being kept away from hearing important cases.
A judgement delivered on Wednesday by a bench headed by Justice Misra seem to have answered this question directly as it reasserted the powers of the chief justice as the master of the roster and the first among equals among judges of the Supreme Court.
The judgement was authored by Justice DY Chandrachud, who is not among the five senior judges who constitute the Supreme Court collegium that recommends judges for elevation.
The 16-page order was passed in response to a public interest litigation that sought a clear roster scheme and directions to ensure that the first bench in the Supreme Court, which is a three-judge bench headed by the chief justice, should permanently include the second and third senior-most judges. Constitution benches should also have judges as per seniority, the petition, which made the Supreme Court registry a respondent, said. The court refused to entertain this suggestion.
However, the judgement has led to another question. Last week, former Union Law Minister Shanti Bhushan moved the court with a petition seeking a clarification on the powers of the chief justice in his capacity as the master of the roster. Procedures should be laid down for listing of matters, the petition said. This allocation of cases should be done by a collegium of five judges to check the “unguided and unbridled discretionary power” of the master of the roster, argued the petition. Will the Wednesday judgement make Bhushan’s petition infructuous?
Seniority of judges
The public interest litigation that the bench was hearing had been filed by a lawyer named Asok Pande. He had sought directions for a procedure to be evolved to constitute benches and allot jurisdiction to various benches of the Supreme Court. He wanted the first bench, which is the three-judge bench headed by the chief justice, to include the second- and third-most senior judges. Constitution benches should consist of judges according to seniority, Pande suggested. For example, if the Constitution bench is a five-judge bench, it should consist of the five senior-most judges of the court.
The question of seniority also came up during the January press conference of the four judges. They suggested that important cases were not being given to them.
Dealing with this question in the public interest litigation, Justice Chandrachud said that “seniority in terms of appointment has no bearing on which cases a judge should hear”.
He said that every judge in the Supreme Court has the equal duty to adjudicate cases allocated by the chief justice. All judges are appointed by the same procedure under Article 124 of the Constitution. The judgement said:
“There is no constitutional foundation on the basis of which such a suggestion can be accepted. For one thing, as we have noticed earlier, this would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. Moreover, the petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice.”
Justice Chandrachud said once appointed, a judge is “dutybound” to hear cases allocated by the chief justice.
The judgement also considered the powers of the chief justice when it comes to being the master of the roster and the administrative head of the court. Chandrachud said the argument that the chief justice’s role in constituting benches and allocating cases must be regulated by a “procedure cast in iron” is the apprehension that without such guidelines, the power will be exercised arbitrarily.
“In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals,” the order said. “In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis” or in a class in itself. In allocating cases and constituting benches, the chief justice has the exclusive prerogative. The judge said:
“As a repository of constitutional trust, the Chief Justice is an institution in himself...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 order also criticised the petitioner for making “scandalous” remarks about High Court judges and advised him to be responsible in drafting his petitions.
Given the elaborate order on the powers of the chief justice as the master of the roster, the fate of the petition moved by Bhushan is hanging in the balance. Lawyer Kamini Jaiswal said she has lost hope of an elaborate hearing in Bhushan’s petition after the Wednesday judgement but pointed out the differences between the two petitions.
“The petition dismissed on Wednesday had what judges have termed as ‘scandalous’ remarks,” she said. “Bhushan’s petition is purely in public interest.”
Jaiswal said the central point of Bhushan’s petition was the interpretation of Article 124 (2) of the Constitution, which governs appointment of judges. Under the provision, the chief justice has to consult with the collegium on appointment of other judges. Likewise, the petition argues by quoting judicial precedent that it is now settled law that even administrative powers of the chief justice must be shared with other senior judges “to ensure that the power is exercised properly and validly”.
