The Supreme Court on Friday sought the assistance of the Attorney General to decide whether the Chief Justice of India (CJI) should consult his senior colleagues of the Collegium while assigning politically sensitive cases before any Bench. The court directed a copy of petition to be served on the A-G and directed listing of the case on April 27.
Bringing a list of 14 cases to show how the CJI as ‘master of roster’ used his discretion to allot politically sensitive cases to select benches, a petition filed by former law Minister Shanti Bhushan brought to the fore the concern among members of the Bench as to how this discretion that vests with CJI has been arbitrarily exercised.
Senior advocates Dushyant Dave and Kapil Sibal who appeared for Bhushan cited the instance of a PIl challenging the appointment of CBI Special Director Rakesh Asthana. The petition was initially listed before a Bench of Justices Ranjan Gogoi and Navin Sinha. As Justice Sinha recused, the matter went to another date. On that day Justice Gogoi was not sitting with Justice Sinha but the matter went to another Bench altogether contrary to the Supreme Court Rules, Dave said.
Supporting him, Sibal pointed out that the Bar has come to court with a “heavy heart” and if the matter cannot be resolved on the administrative side, there must be a judicial recourse as otherwise this power exercised by CJI will be the only order that is not open to any judicial review, which is intrinsic to the court to function as an independent safeguard of the Constitution.
The Bench of Justices AK Sikri and Ashok Bhushan prima facie felt that asking the CJI to consult his collegium colleagues was not practical as who is to determine whether a case that comes to court is politically sensitive. The court said that the petition does not dispute that CJI is the master of roster. However, the grievance is only with regard to the manner of exercise of this power, which could be considered under an in-house mechanism. The Bench said that the Bar is an equal partner in preserving the Constitution and rule of law and suggestions are welcome in this regard.
Dave said that the problem must be recognised as even the four seniormost judges of the Supreme Court have openly spoken about it at a Press conference. At the mention of Press conference, Justice Sikri said, “We won’t go into that matter. Don’t bring that matter here as we are not concerned with it.” Dave then pointed out the instance of the petition seeking investigation into a medical scam that allegedly involved CJI contrary to Rules. Dave demanded that the Registry in case of politically sensitive cases must not take advice from CJI but that of the collegium. The Bench realised there was an area of concern but was concerned whether these matters are justiciable. At this point, it asked ASG Tushar Mehta to serve a copy of the petition to A-G for his assistance.