There was a comfortable feeling that the storm around the Supreme Court was settling soon. But events are turning out to be otherwise. On April 13, the Supreme Court entertained a petition filed by former Union law Minister Shanti Bhusan asserting that the authority of the Chief Justice of India (CJI) as “master of roster” should not be reduced to “an absolute, singular and arbitrary power”. While entertaining this petition, a Bench of Justices AK Sikri and Ashok Bhusan requested Attorney General KK Venugopal to assist the court and posted the next hearing to April 27.
The Bench will hear the petition despite two separate judgments in November 2017 and on April 11, 2018 upholding the Chief Justice’s complete administrative authority to allocate cases and constitute Benches. Both judgments were pronounced by Benches headed by Chief Justice Dipak Misra. The April 11 judgment described the CJI as an “institution in himself”. Shanti Bhusan inter alia urged in his petition that such “absolute discretion” could not be confined to just one person, the CJI. Senior Advocate Dushyant Dave appearing for Shanti Bhusan referred to the 1998 judges case and argued that the Supreme Court itself had interpreted the term “Chief Justice of India” to mean the entire Collegium for the purposes of appointment and transfer of judges. Mr Dave further argued that “sensitive” cases are allocated to Benches as per the CJI’s special order. It is the allocation of these “sensitive” cases which requires collective attention of the Collegium. It was further argued that they should not be left to the “absolute discretion of the CJI”. Justice Sikri observed, in the course of deliberations, that it was “not feasible” for the Collegium of the CJI and his four senior-most judges to assemble and meet two or three times every week to allocate sensitive cases among various judges. Justice Ashok Bhusan told Mr Dave: “What may be sensitive to you may not be sensitive for us”. Justice Sikri observed that prima facie he does not think the Collegium should be treated as the CJI. Dave in his reply submitted, “But if My lord remembers Dr BR Ambedkar had said the CJI may also be a man of many failings. Both the judges in the Bench felt that a procedure for allocation of cases to judges was an ‘in-house’ affair. The judges should evolve a self-governing mechanism”. Justice Sikri asked Mr Dave whether the issue is justiciable. At this stage, Senior Advocate Kapil Sibal rose to answer, “If you do not desire a procedure to be evolved, 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.” Sibal further added that four Supreme Court judges had highlighted the issue of selective allocation of cases to preferred Benches in a Press conference on January 12. Sibal said, “We are troubled. This is painful. We are not against any individual but the way it (the Supreme Court) is being handled today.” Justice Sikri stated that “We will not go into that. Don’t bring that here for many reasons and obvious reasons”. It was submitted by Dave that the April 11 judgment declared the Supreme Court an “independent safeguard” of democracy.
“We are now saying that the safeguard is compromised”, firmly submitted Dave. In the petition, Shanti Bhusan urged the court to “clarify the administrative authority of the CJI as the master of roster and for laying down of the procedure and principles to be followed in preparing the roster for allocation of cases.
While the matters stood thus, it has now been revealed that a group of five judges had attempted to codify the broad duties of the CJI, particularly in allocating cases in his capacity as the master of the roster. According to reports, this attempt to “institutionalise” the CJI’s functions was made following the January 12 Press conference when four senior judges had raised questions about the manner in which cases were being allocated in the court. They had said that recent CJIs have been selectively allocating sensitive and nationally important cases to preferred Benches; despite repeated entreaties from them, they had failed to act. But the deliberations by the five judges came to a halt and the draft proposals remain pending. Meanwhile, instead, the CJI published a subject-wise roster. The body of five judges included Justices SA Bobde, NV Ramana, UU lalit and DY Chandrachud (all being potential Chief Justices) and AK Sikri. They had looked at this attempt as aiming at institutionalising and strengthening the conventions in diverse areas under the administration of justice in the Supreme Court. According to reports, the five mediator judges held hectic parleys with the CJI and four senior-most judges. They proposed a committee to be formed.
Meanwhile, Justice Jasti Chelameswar, the senior-most judge, has said at Nagpur on an occasion on April 14 that there was a need to protect and preserve the dignity of judiciary for the future generations. He said, “I am not here to blame anybody, but I am concerned for my grandchildren. If I want my grandchildren to live with dignity in this country, I need to protect, preserve and strengthen the judiciary in this country. If this system is not strong, independent, efficient and responsible towards social problems of the day, nobody in this country is safe.” He added: “Judicial system is the only mechanism to check men and women in power. It is a time-tested truth that men or women, irrespective of who they are and which country they are from, human history shows power necessarily corrupts people. Corruption does not only mean monetary corruption. They became less sensitive to human problems and misery. To keep them under control, to ensure a dignified life and liberties to the people, a strong, independent judicial system is the only possible mechanism”. The judge also expressed concern over the low rate of conviction in the country (being around 5%). According to the judge, this is indicative of two things. “Either the state is registering cases that are absurd or the investigating apparatus is so incapable that it is not proving the case in the courts. Why is this happeningIJ” How is it that investigating agencies are failing to fulfil their task, the judge asked the gathering mostly of lawyers and judges. Justice Chelameswar also hinted at the alleged misuse of CBI. He went on to say, “I do not think any attempts were made to separate investigating agencies, barring CBI and the ED, and we know the purpose for which they are used.”
All the above indicates that all is not well at the apex court. Every issue raised hitherto lies reopened both through the litigations and through public debate. It has to be appreciated that a robust and independent judiciary is the biggest safeguard for our democratic polity. This is all the more important at the level of the apex court. But once institutional prescription of the role of the CJI takes away the “free play at the joints” newer techniques would finally be evolved by the apex court to suit its needs. There should not be any second thought on the contention that Chief Justices are “institutions” by themselves. They could be at the Supreme Court or in the High Courts. Every judge is an “institution” created by the Constitution to further the cause of democracy and the Constitution.
The issues are now in a melting pot. The coming months will see ideas and assertions leading towards formalising the institutional framework in a transparent and durable manner. In this, the voice of all must be heard through the petitioners. Every citizen is concerned with the jealous protection of our democracy and its vital organ, the judiciary.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com )