Supreme Court agrees to examine Shanti Bhushan's plea questioning CJI's authority as 'master of roster'

The Supreme Court on Friday agreed to examine a plea filed by former law minister Shanti Bhushan who sought directions that the Chief Justice of India as 'master of roster' should not be reduced to an absolute, singular and arbitrary power.

A bench of Justices AK Sikri and Ashok Bhushan asked Attorney General KK Venugopal for his assistance and posted the matter for hearing on April 27.

The apex court bench will examine the petition despite two of its judgments supporting – dated November 2017 and April 9, 2018 upholding the CJI as the complete administrative authority to allocate cases and constitute Benches. However, it must be noted, that CJI Misra led both the judgements – one passed by a five-judge bench, and the other by a three-judge bench. The April 9 judgment – authored by Justice DY Chandrachud, had called the CJI and "institution in himself."

Representing Bhushan, senior advocate Dushyant Dave argued that certain "sensitive" cases were allocated to preferred Benches on the CJI's order. It was this preferred allocation of sensitive cases that required the collective attention of the Collegium and that it should not be decided on the "absolute discretion" of the CJI.

Dave referred to the 1998 SC judgment where it had interpreted that the term "Chief Justice of India" included the entire Collegium for the purposes of appointments and transfers of judges.

"Be he ever so high, he is not above the law... Why is it that certain matters are presented before certain judges. There are instances in the past, and unfortunately, there will be hundreds to come," Dave submitted.

However, responding to these submissions, Justice Sikri observed that interpreting the CJI to include the collegium of senior judges was "not feasible." He added that one could not expect five judges to sit two or three times every week to just list cases.

"What may be 'sensitive' for you may not be sensitive for us (the Supreme Court)," Justice Bhushan told Dave. "Prima facie, I don't think the Collegium should be treated as the Chief Justice of India," Justice Sikri said.

To this, Dave pointed out, "Dr BR Ambedkar had said the CJI may also be a man of many failings."

The bench then averred that allocating cases to benches was essentially an in-house affair. A self-governing mechanism, if any, could be evolved by the judges themselves "Is this issue even justiciable?" Justice Sikri asked Dave.

At this point, Senior advocate Kapil Sibal answered: "If you do not desire a procedure to be evolved (for transparent allocation of sensitive cases) public faith will be lost. You say you cannot decide the question judicially and you also say you will not do it administratively... This is unacceptable".

"We are troubled. This is painful. We are not against any individual, but the way it (Supreme Court) is being handled today. We respect the institution and do not want to attribute any motives," Sibal added.

Sibal reminded the bench about the historic January 12 press conference presided over by four senior judges - who are also part of the collegium, where they had bared their anguish against CJI Misra over his alleged breach of institutional integrity by tinkering with a well-established system.

However, Justice Sikri firmly closed this line of argument and said: "We will not go into that. Don't bring that here for many reasons and obvious reasons."

Dave then brought up the April 9 judgment where it was observed that the Supreme Court as an "independent safeguard" of democracy. "We are now saying that the safeguard is compromised," Dave said.

The top court was hearing a plea filed by Bhushan who sought clarity on "the administrative authority of the Chief Justice of India as the master of roster and for the laying down of the procedure and principles to be followed in preparing the roster for allocation of cases."

The matter was referred to the bench of Justices Sikri and Bhushan a day after Justice Jasti Chelameswar, the senior-most judge of the apex court after CJI Misra refused to entertain the plea seeking the listing of the matter. On Thursday, Justice CHelameswar – who has been an outspoken critic about the latest conflict afflicting the judiciary, said he did not want to interfere in matters two months before his retirement.

WHAT THE PLEA SAYS

• Representing Bhushan, senior advocate Dushyant Dave argued that certain “sensitive” cases were allocated to preferred Benches on the CJI’s order
   
• It was this preferred allocation of sensitive cases that required the collective attention of the Collegium, contended Dave