A series of events during Dipak Misra’s tenure as Chief Justice of India put the spotlight on the discretion vested in that office. It is worth remembering that the clarion call for reform was first sounded by four judges of the Supreme Court in a historic press conference in Delhi in January. However, two benches of the apex court seemed to push back at this through judgments that reiterated that the Chief Justice of India is the “master of the roster” and “an institution himself”. Ranjan Gogoi, one of the four judges who brought the issue into the spotlight, took over as Chief Justice of India on October 3. He is now in a position to bring about changes to ensure that the powers of the Chief Justice of India are no longer misused and used in the best possible way for the country. In this respect, several aspects of the Chief Justice of India’s power must be reconsidered.
The Chief Justice of India is one of the most overworked constitutional functionaries in the country. Today, there are 57,000 cases pending in the Supreme Court that range from civil appeals from the High Courts and tribunals, to criminal appeals, to writ petitions on constitutional issues. The Chief Justice of India has the sole prerogative to decide which types of cases should be prioritised for disposal by either listing more of those cases daily or streamlining them through special benches. Different Chief Justices of India have used different considerations to determine which cases deserve priority. For instance, some constituted special benches to hear criminal cases and public interest petitions, while others focused on tax and commerical cases due to their significant revenue implications, or on land acquisition and motor vehicle accident claims because of the mounting backlog of these cases.
The Chief Justice of India also decides when to constitute larger benches to hear matters of constitutional significance. Even here, different considerations may influence different justices. For instance, in 2016, a nine-judge bench to hear the issue of privacy was not constituted despite repeated requests by the petitioners for over two years, but during the same period a nine-judge bench was constituted to hear the constitutionality of the levy of entry tax. Pertinently, the Chief Justice of India picks the judges who will sit on these benches. This power can greatly, if not entirely, determine the outcome of a particular case. In this context, it is worth recalling that one of the objections to Misra’s management of the Supreme Court was his exclusion of senior judges from benches hearing sensitive cases.
Apart from tackling existing backlog, every Chief Justice of India must also contend with the thousands of new cases being filed in the Supreme Court every month. The majority of these cases get dismissed at the “admission” stage, as they are usually filed by litigants only to try their luck before the apex court. However, they add to the backlog of the court until they are disposed of. Deciding how much time the court will dedicate to these cases is the Chief Justice of India’s call. The approach of most Chief Justices recently has been to allocate more time to such admission hearings, leaving less time for important pending cases. As we have argued elsewhere, this seems to be because the speedy disposal of admission cases drives up disposal rates and presents a good quantitative record.
Though these responsibilties of the Chief Justice of India are dubbed “administrative”, it is clear that they shape the substantive priorities of the court. While the Chief Justice of India takes these decisions in the name of the court, the absence of any guidelines or an obligation to disclose reasons behind exercising (or not exercising) these powers means that their exercise boils down to the individual priorities and proclivities of the Chief Justice of India.
The problem is compounded by three factors. First, it only takes one individual being inclined towards or influenced by the government of the day for the separation of powers between the executive and the judiciary to be threatened and the judiciary to refrain from checking abuse of power by the executive. Second, the tenure of the Chief Justice of India is too short for any one judge to bring about meaningful change. Third, today’s legal culture is focussed on comparing the performance of one Chief Justice of India against another. This does little to incentivise continuity of policies across tenures.
Administering justice fairly
The responsibilities of the Chief Justice of India are complex and multifaceted. Interestingly, they have been concentrated in one individual only as a matter of convention. There is no reason why the court cannot, on its own accord, change convention in recognition of a better approach, perhaps one that institutionalises carefully considered long-term policies arrived at through a more participative mechanism. One such approach would be to start a practice of involving the collegium of the five seniormost judges, responsible for judicial appointments, in all significant policy decisions with respect to administration of the Supreme Court. Notably, in the Second Judges and Third Judges cases, through which the Supreme Court established the collegium, the court highlighted the importance of diffusion of power and of intra-court consultation.
There exist strong reasons to formally involve the collegium in major administrative decisions. First, as we have seen, the way in which a Chief Justice of India exercises their powers substantially affects how (and when) the Supreme Court dispenses justice and thus should not be dependent on one individual. Second, the five senior-most judges of the court, having spent a considerable amount of time as Supreme Court judges, would be in a position to authoratatively comment on issues that need to be rectified on priority. Third, a number of members of the collegium would go on to become Chief Justices, thus increasing the possibility of continuity of policies when reins are handed over, and decreasing the focus on individual legacies.
The Supreme Court, over-burdened and still recovering from the loss of credibility faced during Misra’s term as Chief Justice, needs new solutions. It would be best if those solutions were worked out by the court as an institution rather than by an individual. The events over the last year have made it clear that a diffusion of the Chief Justice of India’s powers can ironically only be done by the Chief Justice of India. Yet, it is also clear that diffusion of administrative power is key to administering justice fairly. What remains to be seen is whether Chief Justice Gogoi will rise to the occasion.
Jahnavi Sindhu and Vikram Aditya Narayan are advocates practicing in New Delhi.