Mudit Ahuja

Allocation of matters and constitution of Benches are very important functions in the administration of the Court and these duties shall not be conferred on the wisdom of a single individual.

The Constitution of India renders the Supreme Court as the final institution in the waterfall system of justice dispensation in our country. It is the repository of faith and the sentinel on the qui vive. It acts as a bulwark against the contravention of Fundamental Rights. Therefore, it is pertinent for the Judiciary to maintain its reverence by showing fidelity to the Constitution and performing its duties transparently.

However, to date, the topmost institution lacks regimentation in the allocation of matters and the constitution of Benches. The practice that was devised long back is followed till date, the Chief Justice is deemed to be the master of the roster and solely exercises complete freedom to frame the roster, allocate matters, and constitute Benches. This practice has given rise to many controversies culminating in the famous press conference by Justice Chelameshwar along with his brethren. The judges denounced the arbitrary and opaque manner of constitution of Benches and allocation of several matters. Issues were raised regarding the allocation of important government matters to specific judges. Although Shri Shanti Bhushan filed a petition challenging this archaic practice, the Court’s adamancy made it justify the same. In this short stint of words I seek to posit that the Chief Justice, while exercising its power as the master of the roster, shall be deemed to mean a Collegium of Judges of the Supreme Court and shall not exclusively exercise this power.

I strictly restrict my arguments to the Indian context and make a broad three pronged approach. Firstly, our Constitution underpins the system of checks and balances and the principle of non-arbitrariness, which is attested by the famous doctrine of separation of powers, our Preamble, system of bicameralism, and is therefore pervasive throughout our Constitutional document and myriad Supreme Court Judgements. It is pertinent to note that no constitutional machinery, including the President and the Governor, has been given unfettered powers. Their powers have been also restricted by the aid and advice of ministers. Regard must also be paid to the observation of the Supreme Court in the case of Supreme Court Advocate-on-Record v. Union of India colloquially known as the Second Judges Case wherein it observed:

“It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity.”

It is paramount to note that making a roster and the formation of Benches are important and crucial functions in the system of justice dispensation. It is foremost that complete transparency and fairness must be maintained in all government institutions. It is in this regard that Lord Chief Justice Hewart conceived the principle that “Not only must Justice be done; it must also be seen to be done.” This principle has entrenched itself in the rule of law. In the decision of the case Gurucharan Das Chadha v. State of Rajasthan, Justice Hidayatullah observed,

“  It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done”.

Further, to bolster my argument I would like to underline the observation of the former Chief Justice India Dipak Misra in the case of Govt. of NCT v. Union of India, He observed

“It is a well recognised principle of a true democracy that the power shall not remain vested in a single person”……”The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare if the people in an unethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect.

Further, BR. Ambedkar while rejecting the suggestion that appointments of judges should be made by the concurrence of the Chief Justice observed

“ After all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day.” (vol. 8, p. 238)

Considering these observations of the Supreme Court and the principles it is pertinent that this important and crucial power shall not be enjoyed by a single individual. Utilisation of important functions and powers shall be followed by debates and discussions, conferring it in the hands of a single individual might open the floodgates for its misuse. Further, this lack of transparency in the matters involving allocation of matters and constitution of Benches make the litigant question the judiciary and is in stark violation of the principle of Justice shall not merely be done but must be seem to be done as well.

Secondly, in the landmark case of SP Gupta v. UOI, the Court observed that the term ‘Chief Justice’ under Article 124 of the Constitution, which pertains to appointment of judges to the Supreme Court to mean a collegium of Judges and not the Chief Justice alone in his individual capacity. It observed:

We are all human beings with our own likes and likes, our own predilections and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgements be incorrect or inadequate and our judgement may also sometimes be imperceptibly influences by extraneous or irrelevant considerations. It may also be noted that it is not difficult to find reason to justify what out bias or predilection or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it be exercisable by plurality of hands rather than be vested in a single individual.”

Subsequently, this principle was followed in the Second and the Third judges case. In the Third Judges case, the Hon’ble Supreme Court held the term Chief Justice under Article 124 with regards to the appointment of Judges to include five senior most judges of the Supreme Court. The Hon’ble Supreme Court in the above mentioned cases has asserted this principle of non-arbitrariness and has laid stress on the principle followed in SP Gupta.

“It is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying.” Because of the reasons as mentioned before. It is a well settled principle of English as well as Indian law that “where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning”. Further any such interpretation confiding power in a single individual is against the principles of a federal democracy and shall be strictly eschewed.

Furthermore, it is submitted that the Constitution of Independent India does not explicitly talk about these powers of the Chief Justice. It is important to take a step back and peruse Section 214 (3) of the Government of India Act,1935 which read as

“…..3) Subject to the provision of any rules of the court, the Chief Justice of India shall determine what Judges are to constitute any division of the court and what Judges are to sit for any purpose.”

It is important to observe that the absence of Section 214(3) is not a mere ignorance. The founding fathers chose to deliberately avoid it from the new Constitution. This enlightens their reluctance to confer power of such sorts on the Chief Justice alone and any interpretation supporting the same shall be strictly avoided.

Lastly, Article 145 of the Constitution of India reads as:

“(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including……..”

It is clear from the bare reading of the provision that the Constitution framers specifically conferred the rule making power on the Supreme Court as a whole and not the Chief Justice in his individual capacity. The Supreme Court rules, 2013 and the Handbook on Practice and Procedure and Office Procedure,2017 published by the Supreme Court are merely a piece of delegated legislation and they must be interpreted in the light of the parent statue i.e. The Constitution. Therefore, any rule granting unfettered power to the Chief Justice shall be interpreted harmoniously with Article 145 and shall be confined within the limits of the words of Article 145 and the power of allocating matters and constituting benches shall be appropriately divided.

 Concluding remark.

Allocation of matters and constitution of Benches form a very essential function of the Courts. It is pertinent that to pursue the principles of non-arbitrariness and the rule of law these duties be performed with utmost care, deliberations, and discussions. Exercise of this power by an individual howsoever high can lead to suppression of facts and lack of transparency. The Judiciary is an organ formed to protect the people and therefore, it should act in the maximum transparent manner with the people. It is only then that the ‘the spirit of Justice will seem to be done as well’.

Mudit is a V year student at ILS Law College, Pune.