The Judiciary Unrest In India: A Critical Explication
LawZ Magazine|October 2018
The Judiciary Unrest In India: A Critical Explication

The Supreme Court of India was witnessed to existential altercation within itself and the Executive from last couple of months, firstly the four Judges press-conference alleging CJI for exercising its power of Master of Roster authoritatively and arbitrarily, secondly the pronouncement of Judgment on the CJIs power as Master of Roster on the petition filed by Asok Pande, thirdly the impeachment motion notice to Rajya Sabha Chairman which was categorically rejected by him, stating reasons for rejection, fourthly the return of Collegium recommendation to elevate Uttrakhand High Court Chief Justice K.M. Joseph as a Judge of Supreme Court and lastly the moving of two MPs challenging Vice Presidents Order rejecting impeachment proceedings against CJI.

Yash Mittal

Riding on the Roster: Is CJI’s power of forming Roster unbridled?

The apex court of the country consists of Chief Justice and its other puisne judges. In discharging the judicial functions the powers of the CJI and other Judges are same. On seniority basis the CJI is the highest judicial position in the country, therefore the position of the CJI is termed as “primus inter pares” by the court in the case Campaign for Judicial Accountability and Reform v. Union of India meaning first among equals which according to Marium Webster Dictionary is used as an honorary title for those who are formally equal to the other person but accorded unofficial respect, owing to their seniority in the office. But on administrative functions the Chief Justice of India enjoys the superior power to that of other Judges which is called as the “Master of the Roster” pronounced by the court in Prakash Chand v. State of Rajasthan where the court laid down following principles:

i). That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches and allocate cases to the benches so constituted.

ii). That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

iii). That till any determination made by the Chief Justices lasts, no Judge who is to sit singly can sit in a division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

iv). That the puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

v). That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.

The Prakash Chand’s case undoubtedly affirms the special status enjoyed by the Chief Justice in assigning cases to the benches of the court i.e., which case is to be heard by which bench. The CJI enjoys the power to assign the cases to the benches as if Judges are allowed to take the matters on their own there would be a complete collapse of the court machinery and would lead to an emergence of internal strife among Judges over Jurisdiction over a particular case. Judges can assume Jurisdiction over the particular case as and when cases are allotted to them by the Chief Justice. Therefore it embarks the stringent adherence of the Chief Justice prerogative of Master of the Roster for maintaining judicial functioning in well ordered and structured manner.

Does the prerogative of CJI constitute the benches and allotting the cases to benches gives him an unbridled power to form roster? Certainly not, as when the CJI or Supreme Court takes administrative decisions they are definitely subjected to fundamental a right, which was pronounced by the Court in Srilekha Vidyarthi v. State of Uttar Pradesh that reasonable and non-arbitrary exercise of discretion is an inbuilt requirement of law, and any unreasonable or arbitrary exercise of it violates the right to equality. Therefore CJI cannot act in an arbitrary manner act according to its whims and fancies when it comes to the administrative function of constituting bench and whatever decision the CJI takes should be according to the Rule of Law even while in an exercise of his administrative power. Famous English Churchmen Thomas Fuller emphasizes “Be you ever so high, Law is above you”. Thus principle signifies that CJI is also bound by the law.

In order to check the abuse of power in assigning cases and constituting benches, the PIL filed by the former Law Minister and the Senior Advocate Shanti Bhushan before the Hon’ble Court seeks clarification on the administrative power of the CJI. The petition argues that CJI power of Master of Roster can’t be unguided and unbridled discretionary power in hand picking Judges or by assigning cases to a particular Judge, as any such power or its exercise would result in subversion of democracy and the Rule of Law as guaranteed by Article 14. The power of the CJI to form Roster should be exercised in consultation with other Judges of the collegium to ensure the exercise of power in just, fair and transparent manner.

Impeachment Proceedings against CJI

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October 2018