# SHANTI BHUSHAN v. SUPREME COURT OF INDIA

- **Citation:** [2018] 12 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 2018-07-06
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shanti-bhushan-v-supreme-court-of-india-32340
- **Pages:** 55

## Headnote

Constitution of India - Art.145 - Administrative authority of
Chief Justice of India in preparing roster for allocation of cases -
Clarification of - Held: Per A.K. Sikri, J.: The Constitution is silent
on the role of the 'Chief Justice' - However, the Constitution Bench
in the case of Campaign for Judicial Accountability and Reforms
had held that Chief Justice alone has the administrative control of
the Supreme Court and he is the Master of the Roster and he alone
has the prerogative to constitute the Benches of the Court and
allocate cases to the Benches so constituted - Legal position
contained in the various judgments of the Supreme Court is based
upon healthy practice and sound conventions which have developed
over a period of time and that stands engrafted in the Supreme
Court Rules - The two most obvious functions of the 'Chief Justice'
are to exercise judicial power as a Judge of the Court on equal
footing as others, being 'among equals' and to assume responsibility
of the administration of the Court, which gives him the ultimate
authority for determining the distribution of judicial work load -
Per Ashok Bhushan, J. (concurring): Sub-article (1) of Art.145
provides that 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 the various subjects as enumerated
in sub-article (1) - The power of the Chief Justice to allocate cases
flows from the rules framed u/Art.145 - The Chief Justice of India
has been exercising the jurisdiction of formulating the roster for
convenient distribution of Court's business and constituting the
benches from time to time - Furthermore, it is also clear from the
law laid down by the Supreme Court in various Judgments that
allocation of business of Court by the Chief Justice not only flows
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from the Constitutional provisions but it is the prerogative of the
Chief Justice and which is a convention followed from the very
beginning - Supreme Court Rules, 2013 - Practice and Procedure.
Supreme Court Rules, 2013 - Whether the expression 'Chief
Justice' in the Supreme Court Rules is to be read as 'Collegium' of
first five Judges - Held: Per A.K. Sikri, J.: In case the expression
'Chief Justice' is to be interpreted as 'Collegium', it would be difficult
to have smooth day to day functioning of the Supreme Court -
Assigning of cases is undertaken by the Chief Justice on daily basis
in contrast with the meetings of the Collegium for the purpose of
appointment of Judges, which is infrequent - Thus, meeting of
Collegium for the purpose of assigning the cases to a particular
Bench on daily basis is impracticable - Per Ashok Bhushan, J.
(concurring): Art.145 empowers the Supreme Court to frame rules
with the approval of the President and the Rules framed by Supreme
Court u/Art.145 specifically refers the Chief Justice in Chapter VI,
the Chief Justice, who is to nominate the bench for hearing every
case, appeal or matter - There is no indication in any of the
Constitutional provisions or rules framed thereunder that allocation
of cases and formation of benches, Chief Justice should be read as
collegium - Practice and Procedure.
Disposing of the Writ petition, the Court
HELD:
Per A.K. Sikri, J.:
1. The 'Chief Justice' in his individual capacity is the Master
of Roster and it cannot read as Collegium of first three or five
Judges. Thus, it is his prerogative to constitute the Benches
and allocate the subjects which would be dealt with by the
respective Benches. [Para 20] [995-D-E]
2. The Constitution is silent on the role of the 'Chief
Justice'. There is no specific provision relating thereto either in
the Constitution or even in any other law. The legal position
contained in the earlier judgments is based upon healthy practice
and sound conventions which have been developed over a period
of ti

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SUPREME COURT REPORTS
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SHANTI BHUSHAN
v.
SUPREME COURT OF INDIA
THROUGH ITS REGISTRAR AND ANOTHER
(Writ Petition (C) No.789 of 2018)
JULY 06, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India - Art.145 - Administrative authority of
Chief Justice of India in preparing roster for allocation of cases -
Clarification of - Held: Per A.K. Sikri, J.: The Constitution is silent
on the role of the 'Chief Justice' - However, the Constitution Bench
in the case of Campaign for Judicial Accountability and Reforms
had held that Chief Justice alone has the administrative control of
the Supreme Court and he is the Master of the Roster and he alone
has the prerogative to constitute the Benches of the Court and
allocate cases to the Benches so constituted - Legal position
contained in the various judgments of the Supreme Court is based
upon healthy practice and sound conventions which have developed
over a period of time and that stands engrafted in the Supreme
Court Rules - The two most obvious functions of the 'Chief Justice'
are to exercise judicial power as a Judge of the Court on equal
footing as others, being 'among equals' and to assume responsibility
of the administration of the Court, which gives him the ultimate
authority for determining the distribution of judicial work load -
Per Ashok Bhushan, J. (concurring): Sub-article (1) of Art.145
provides that 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 the various subjects as enumerated
in sub-article (1) - The power of the Chief Justice to allocate cases
flows from the rules framed u/Art.145 - The Chief Justice of India
has been exercising the jurisdiction of formulating the roster for
convenient distribution of Court's business and constituting the
benches from time to time - Furthermore, it is also clear from the
law laid down by the Supreme Court in various Judgments that
allocation of business of Court by the Chief Justice not only flows
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from the Constitutional provisions but it is the prerogative of the
Chief Justice and which is a convention followed from the very
beginning - Supreme Court Rules, 2013 - Practice and Procedure.
Supreme Court Rules, 2013 - Whether the expression 'Chief
Justice' in the Supreme Court Rules is to be read as 'Collegium' of
first five Judges - Held: Per A.K. Sikri, J.: In case the expression
'Chief Justice' is to be interpreted as 'Collegium', it would be difficult
to have smooth day to day functioning of the Supreme Court -
Assigning of cases is undertaken by the Chief Justice on daily basis
in contrast with the meetings of the Collegium for the purpose of
appointment of Judges, which is infrequent - Thus, meeting of
Collegium for the purpose of assigning the cases to a particular
Bench on daily basis is impracticable - Per Ashok Bhushan, J.
(concurring): Art.145 empowers the Supreme Court to frame rules
with the approval of the President and the Rules framed by Supreme
Court u/Art.145 specifically refers the Chief Justice in Chapter VI,
the Chief Justice, who is to nominate the bench for hearing every
case, appeal or matter - There is no indication in any of the
Constitutional provisions or rules framed thereunder that allocation
of cases and formation of benches, Chief Justice should be read as
collegium - Practice and Procedure.
Disposing of the Writ petition, the Court
HELD:
Per A.K. Sikri, J.:
1. The 'Chief Justice' in his individual capacity is the Master
of Roster and it cannot read as Collegium of first three or five
Judges. Thus, it is his prerogative to constitute the Benches
and allocate the subjects which would be dealt with by the
respective Benches. [Para 20] [995-D-E]
2. The Constitution is silent on the role of the 'Chief
Justice'. There is no specific provision relating thereto either in
the Constitution or even in any other law. The legal position
contained in the earlier judgments is based upon healthy practice
and sound conventions which have been developed over a period
of time and that stands engrafted in the Supreme Court Rules.
In fact, it is dominated by two stereo-types. One, perpetuated by
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS
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the common belief and widely endorsed and accepted by all the
stakeholders, is that the 'Chief Justice' occupies the role of 'first
among equals'. The phrase 'among equals' is generally relatable
to the judicial function designed to emphasise the fact that voices
of the members of a particular Bench, which may include 'Chief
Justice', are given equal weight and that in deciding cases, the
opinion of the 'Chief Justice' also carries same weight and is no
different from those of other Members of the Bench. Thus, in a
given case, there is a possibility that the view of the 'Chief Justice'
may be a minority view and in that eventuality, the outcome of
case would be what majority decides. The word 'first' in the
aforesaid expression signifies only the fact that the 'Chief Justice'
is the senior most Judge of the Court. [Para 21] [995-E-H;
996-A]
3. The second stereotype is that being the 'Chief Justice'
and senior most Judge of the Court, he is empowered to exercise
'leadership' on the Court. In this role, the 'Chief Justice' is
expected to be the spokesperson and representative of the
judiciary in its dealings with the Executive, Government and the
Community. For this purpose, the 'Chief Justice' has a general
responsibility to ensure that the Court promotes change and
reform as appropriate. The judicial reforms, which is a continuing
process in order to ensure that there is real access to justice,
also becomes the moral responsibility of the 'Chief Justice'. Such
reforms in the administration of justice are not limited to the
judicial aspects (i.e. how the cases need to be decided, case
management and court management, speedy disposal etc.) but
also include reforms on the administrative side of the legal system
as well. Procedural reforms and implementation thereof is an
integral part of the judicial reform. The ultimate purpose is to
dispense justice, which is the highest and noblest virtue. Again,
in this role, the 'Chief Justice' gets the authority and responsibility
for the administration of the Court, which gives him the ultimate
authority for determining the distribution of judicial work load.
[Para 22] [996-B-E]
4. Under the Constitution, the Supreme Court is given the
authority to frame Rules for regulating generally the practice and
procedure of the Court, including various subjects as enumerated
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in sub-Article (1) of Article 145. Supreme Court Rules, 2013
which have been framed in exercise of such a power empowered
the Chief Justice to constitute the Benches and list particular
matters before such Benches. Similar powers are conferred upon
the Chief Justice of the High Courts in the Rules framed by
respective High Courts for regulating its procedure.
[Para 23] [997-A-B]
5. At the same time, the power of the 'Chief Justice' does
not extend to regulate the functioning of a particular Bench to
decide cases assigned to him once the cases are allocated to that
Bench. A Bench comprising of puisne Judges exercise its judicial
function without interference from others, including the 'Chief
Justice', as it is supposed to act according to law. Therefore,
when a particular matter is assigned to a particular Bench, that
Bench acquires the complete dominion over the case.
[Para 24] [997-C]
6. It follows that the two most obvious functions of the 'Chief
Justice' are to exercise judicial power as a Judge of the Court on
equal footing as others, being 'among equals' and to assume
responsibility of the administration of the Court. [Para 25]
[997-D]
Campaign for Judicial Accountability and Reforms v.
Union of India & Anr. (2018) 1 SCC 196 - followed.
State of Rajasthan v. Prakash Chand & Ors. (1998) 1
SCC 1 : [1997] 6 Suppl. SCR 1 ; Asok Pande v.
Supreme Court of India through its Registrar and Ors.
[2018] 3 SCR 337 - relied on.
Supreme Court Advocates-On-Record Association and
Others v. Union of India (1993) 4 SCC 441 : [1993] 2
Suppl. SCR 659 ; S.P. Gupta v. Union of India and
Another (1981) Suppl. SCC 87 : [1982] SCR 365 ;
Ranjit Thakur v. Union of India and Others (1987) 4
SCC 611 : [1988] 1 SCR 512 ; Special Reference
No. 1 of 1998 (1998) 7 SCC 739 : [1998] 2 Suppl.
SCR 400 - referred to.
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Per Ashok Bhushan, J. (Concurring)
1. The law laid down by this Court as is clear from
precedents, is that allocation of business of Court by the Chief
Justice not only flows from the Constitutional provisions but is
held to be prerogative of the Chief Justice and which is a
convention followed from the very beginning. Apart from that,
the power of the Chief Justice to allocate cases flows from rules
framed under Article 145 of the Constitution of India.
[Para 20] [1015-F]
2. With regard to procedure and practice of Supreme Court,
Article 145 empowers the Supreme Court to frame rules with
the approval of the President. The word practice and procedure
of the Court are wide enough to include practice and procedure
relating to preparation of roster and allocation of cases. The
Rules framed by Supreme Court under Article 145 specifically
refers that the Chief Justice is to nominate the bench for hearing
every case, appeal or matter. There is no indication in any of the
constitutional provisions or rules framed thereunder that for
allocation of cases and formation of benches, Chief Justice should
be read as collegium. [Para 27] [1021-D-E]
3. The Attorney General rightly stated that allocation of
cases and constitution of benches, if it is given in the multiple
hands, there shall be differences and hurdles in smooth
distribution of work. Thus, the submission of the petitioner cannot
be accepted that in allocating cases and formulating benches of
the Supreme Court, the word "Chief Justice" should be read as
collegium, which submission is unfounded and is rejected.
[Para 28] [1022-A-B]
State of Rajasthan v. Prakash Chand & Ors. (1998) 1
SCC 1 : [1997] 6 Suppl. SCR 1 ; Inder Mani and
Others v. Matheshwari Prasad and Others (1996)
6 SCC 587 : [1996] 7 Suppl. SCR 400 ; Union of
India and Another v. Raghubir Singh (Dead) By LRs.
Etc. (1989) 2 SCC 754 : [1989] 3 SCR 316 ;
D.C. Saxena v. Hon'ble The Chief Justice of India
(1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677 ;
State of Uttar Pradesh and Others v. Neeraj Chaubey
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and Others (2010) 10 SCC 320 : [2010] 11 SCR 542 ;
S.P. Gupta v. Union of India (1981) Suppl. SCC 87 ;
[1982] 2 SCR 365 ; Supreme Court Advocates on
Record Association and Others v. Union of India (1993)
4 SCC 441 : [1993] 2 Suppl. SCR 659 ; Special
Reference No.1 of 1998 (1998) 7 SCC 739 : [1998] 2
Suppl. SCR 400 ; Campaign for Judicial Accountability
and Reforms v. Union of India & Anr. (2018) 1 SCC
196 ; Asok Pande v. Supreme Court India through its
Registrar and Ors, (2018) 5 SCALE 481 : [2018] 3
SCR 337 - referred to.
Case Law Reference
In the Judgment of A.K. Sikri, J.
[1993] 2 Suppl. SCR 659
referred to
Para 3
[1982] 2 SCR 365
referred to
Para 4
[1988] 1 SCR 512
referred to
Para 6
[1998] 2 Suppl. SCR 400
referred to
Para 8
[1997] 6 Suppl. SCR 1
relied on
Para 13
(2018) 1 SCC 196
followed
Para 14
In the Judgment of Ashok Bhushan, J.
[1997] 6 Suppl. SCR 1
 referred to
 Para 4
[1996] 7 Suppl. SCR 400
 referred to
 Para 15
[1989] 3 SCR 316
referred to
 Para 17
[1996] 3 Suppl. SCR 677
referred to
 Para 18
[2010] 11 SCR 542
referred to
 Para 19
[1981] 2 SCR 87
referred to
 Para 21
[1993] 2 Suppl. SCR 659
referred to
 Para 21
[1998] 2 Suppl. SCR 400
referred to
 Para 21
(2018) 1 SCC 196
referred to
 Para 33
[2018] 3 SCR 337
referred to
 Para 33
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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 789 of 2018.
Under Article 32 of the Constitution of India.
Dushyant Dave, Sr. Adv., Prashant Bhushan, Ms. Cheryl D'
Souza, Ms. Priyanka, Amir Nabi, Omana Kuttan K., Advs. for the
Petitioner.
K.K. Venugopal, AG, Tushar Mehta, ASG, Rohit Bhat, Adv. for
the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. The name of respondent No.2 is deleted
from the array of parties, inasmuch as, having regard to the nature of
submissions made during hearing, which would be taken note of at the
appropriate place, respondent No.2 is not a necessary party.
2. The petitioner herein, who is a senior advocate practicing in
this Court and enjoys credible reputation in the profession as well as in
public, has filed this writ petition under Article 32 of the Constitution of
India. In this writ petition, he seeks this Court to clarify the administrative
authority of the Chief Justice of India (for short, the 'Chief Justice') as
the Master of Roster and for laying down the procedure and principles
to be followed in preparing the Roster for allocation of cases.
3. It may be mentioned at the outset that the petition acknowledges
and accepts the legal principles that the Chief Justice is the "Master of
Roster" and has the authority to allocate the cases to different Benches/
Judges of the Supreme Court. It is also conceded that adherence to this
principle, namely, the Chief Justice is the Master of Roster, is essentially
to maintain judicial discipline and decorum. It is also stated that the Chief
Justice is first among equals, meaning thereby all Judges of the Supreme
Court are equal with same judicial power, with Chief Justice as the senior
most Judge. At the same time, it is contended that this power is not to be
used to assert any superior authority by the Chief Justice and the power
is to be exercised in a manner that is fair, just and transparent. As the
Master of Roster, it is also conceded that it is the Chief Justice who has
to decide as to which Bench will hear a particular case. The apprehension
expressed is that keeping in view the predisposition of particular Judges,
the Chief Justice may assign cases to those Judges to achieve a
predetermined outcome. This calls for, according to the petitioner, devising
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a more rational and transparent system of listing and re-allocation of the
matters to avoid any such possibilities. As per the petitioner, the matters
need to be listed by strictly following the provisions of the Supreme
Court Rules, 2013 (hereinafter referred to as the 'Rules'). These Rules,
no doubt, empower the Chief Justice to allocate certain cases by
exercising his discretionary power. The petitioner submits that in order
to ensure that such a discretion is exercised in a fair manner, the
expression 'Chief Justice' should be interpreted to mean 'Collegium'
of first five Judges of the Supreme Court, as held by this Court in Supreme
Court Advocates-On-Record Association and Others v. Union of
India1 (famously known as the "Second Judges' case"). On the
aforesaid edifice, the petitioner has prayed for the following directions:
"(a) That this Hon'ble Court may be pleased to issue a writ of
declaration or a writ in the nature of declaration or any other
appropriate writ, order or direction holding and declaring that
listing of matters must strictly adhere to the Supreme Court Rules,
2013 and Handbook on Practice and Procedure and Office
Procedure, subject to the following clarification:
i) The words 'Chief Justice of India' must be deemed to
mean a collegium of 5 senior judges of this Hon'ble Court.
(b) That this Hon'ble court may be pleased to issue a writ of
declaration of a writ in the nature of declaration or any other
appropriate writ, order or direction holding and declaring that the
consultation by the Registry Officials for listing purposes, if any
with the Hon'ble Chief Justice of India must include consultation
with such number of senior-most judges as this Hon'ble court
may fix in the interest of justice.
(c) That this Hon'ble Court may be pleased to issue a writ of
prohibition or a writ in the nature of prohibition or any other
appropriate writ, order or direction prohibiting the Hon'ble Chief
Justice of India and concerned respondents from listing any
matter contrary to the Supreme Court Rules, 2013 and Handbook
on Practice and Procedure and Office Procedure or picking and
choosing Benches for the purpose of listing contrary thereto, with
the above modification of replacing 'Chief Justice of India' with
the collegium of 5 senior most judges of this Hon'ble Court.
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(d) That this Hon'ble Court may Clarify that when matters are
mentioned for urgent hearing/listing, only a date/time of hearing
would be fixed but the Bench to hear the matter would be
determined in accordance with the Rules.
(e) That this Hon'ble Court may be pleased to grant such other
and further relief as may be deemed fit in the facts and
circumstances of the case and as may be required in the interests
of justice."
4. Mr. Dushyant Dave, learned senior counsel appearing for the
petitioner, submitted that in certain cases, instances whereof are given
in the writ petition, the manner in which matters are allocated to certain
Benches reflect that either there was no strict adherence to the Rules or
the transparency was lacking. He, however, at the outset, made it clear
that the petitioner does not seek to question the validity of any judicial
orders and/or judgments which have been rendered in those cases or in
other cases. The petition is confined to the scope and ambit of the
powers of the Chief Justice in listing matters and to seek declaration
that the power must be exercised lawfully and on objective consideration,
thereby eschewing any subjective considerations. The entire thrust of
his submissions was, therefore, to suggest the ways and means for
achieving the same. In this behalf, he advanced the following propositions:
(a) Constitution of India expressly confers powers on the Supreme
Court under Article 145 to make Rules "for regulating generally the
practice and procedure of the court" with the approval of the
President. Such Rules may include, 'rules as to the procedure for hearing
appeals and other matters pertaining to appeals including the time within
which appeals to the Courts are to be entered'. Sub-Articles (2) and (3)
thereunder fix minimum number of judges to sit for any purpose including
for deciding a case involving substantial question of law as to the
interpretation of the Constitution or a Reference under Article 143.
Article 124 establishes and constitutes the Supreme Court by
providing, 'there shall be a Supreme Court of India consisting of a
Chief Justice and, until Parliament by law prescribes a larger number
of not more than seven other Judges (original)'.
Thus, the expression 'Supreme Court' includes the Chief Justice
and other Judges of the Court. The power to frame Rules under Article
145 is, therefore, conferred upon the entire Court, which power includes
power to frame the Roster and direct hearing/ listing of matters.
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(b) Thus, although the Chief Justice is the Master of the Roll
under the convention, the Constitution has departed from the conventional
Scheme to confer power upon the supreme Court.
(c) The expression 'Chief Justice' has been interpreted by a
Constitution Bench of this Court in S.P. Gupta v. Union of India and
Another2 (known as the "First Judges' case") to mean a 'Collegium'.
This was done to ensure a guard against the absolute power being
conferred upon the Chief Justice alone. It was observed in the said
judgment as follows:
"31...We are all human beings with our own likes and dislikes, our
own predelictions 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 judgments may be incorrect or inadequate and our
judgment may also sometimes be imperceptibly influenced by
extraneous or irrelevant considerations. It may also be noticed
that it is not difficult to find reasons to justify what our bias or
predeliction 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 must
be exercisable by plurality of hands rather than be vested in a
single individual..."
This principle has been subsequently followed by this Court in the
Second and Third Judges' case.
The interpretation so canvassed by this Court must equally apply
in respect of the power, if any, exclusively claimed by the Chief Justice
as the Master of the Roster. It is well settled that in a statute a particular
expression must receive the same and consistent meaning.
(d) Functions as 'framing of Roster' and 'listing of important
and sensitive matters' are extremely crucial and cannot be left to the
sole discretion of the Chief Justice as per the law laid down in the First
Judges' case. In any case, such exclusive discretion is anathema to the
constitutional scheme. It is, therefore, imperative that the expression
'Chief Justice' must mean the Supreme Court or, as held by this Court
2(1981) Supp. SCC 87
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in series of judgments, the 'Collegium' of five senior most judges, to
provide appropriate checks and balances against any possible abuse.
(e) The Rules framed under Article 145 of the Constitution confer
powers on the Registrar under Order III Rules 7 and 8 to deal with
preparation of lists and fixing of hearings of petitions, which would include
appropriate listings. The matters be listed strictly as per these Rules.
5. To put it pithily, the submission is that once the Rules are framed,
matters should be listed and fixed for hearing as per the provisions,
particularly Order III Rules 7 and 8, thereof. Further, in any case, the
expression 'Chief Justice' has to assign the meaning by reading it as a
'Collegium' so that important and sensitive matters are assigned to
particular Benches by the Collegium of five senior most Judges, including
the Chief Justice.
6. Mr. Dave elaborated the aforesaid submissions by arguing that
fairness in action was the hallmark of any administrative power and
while exercising the power as a Master of Roster in allocating a Bench
to hear particular kind of cases, the Chief Justice performs his function
in an administrative capacity. He also submitted that applicability of the
principle of bias is to be judged by applying the test of reasonable
apprehension of bias in the mind of a party, as held in the case of Ranjit
Thakur v. Union of India and Others3. It was emphasised that the
Constitution of India has created an independent judiciary which is vested
with the power of judicial review to determine the legality of administrative
actions and, thus, it becomes the solemn duty of the judiciary to keep the
organs of the State within the limits of the power conferred by the
Constitution by exercising the power of judicial review which is the
sentinel on the qui vive. When such an important task is assigned to the
judiciary, power of listing the cases has to be exercised in a fair and
transparent manner so as to instill confidence in the public at large that
the matter shall be decided by the Court (or for that matter, by a particular
Bench) strictly on legal principles to ensure that Rule of Law, which is a
part of the basic structure of the Constitution, prevails. In this context, it
was argued that the power to allocate the cases should not be with one
individual and this could be taken care of by applying the principle laid
down in the Second Judges' case wherein, while laying down the
foundation of the Collegium system for the appointment of Judges, it
was held:
3(1987) 4 SCC 611
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"427. It is, therefore, realistic that there has to be room for
discretionary authority within the operation of the rule of law, even
though it has to be reduced to the minimum extent necessary for
proper governance; and within the area of discretionary authority,
the existence of proper guidelines or norms of general application
excludes any arbitrary exercise of discretionary authority. In such
a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines or norms,
further reduces the area of discretion; but to that extent
discretionary authority has to be given to make the system
workable. A further check in that limited sphere is provided by
the conferment of the discretionary authority not to one individual
but to a body of men, requiring the final decision to be taken after
full interaction and effective consultation between themselves, to
ensure projection of all likely points of view and procuring the
element of plurality in the final decision with the benefit of the
collective wisdom of all those involved in the process. The
conferment of this discretionary authority in the highest
functionaries is a further check in the same direction. The
constitutional scheme excludes the scope of absolute power in
any one individual. Such a construction of the provisions also,
therefore, matches the constitutional scheme and the
constitutional purpose for which these provisions were enacted.
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450. It is obvious, that the provision for consultation with the
Chief Justice of India and, in the case of the High Courts, with the
Chief Justice of the High Court, was introduced because of the
realisation that the Chief Justice is best equipped to know and
assess the worth of the candidate, and his suitability for
appointment as a superior Judge; and it was also necessary to
eliminate political influence even at the stage of the initial
appointment of a Judge, since the provisions for securing his
independence after appointment were alone not sufficient for an
independent judiciary. At the same time, the phraseology used
indicated that giving absolute discretion or the power of veto to
the Chief Justice of India as an individual in the matter of
appointments was not considered desirable, so that there should
remain some power with the executive to be exercised as a check,
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whenever necessary. The indication is, that in the choice of a
candidate suitable for appointment, the opinion of the Chief
Justice of India should have the greatest weight; the selection
should be made as a result of a participatory consultative process
in which the executive should have power to act as a mere check
on the exercise of power by the Chief Justice of India, to achieve
the constitutional purpose. Thus, the executive element in the
appointment process is reduced to the minimum and any political
influence is eliminated. It was for this reason that the word
'consultation' instead of 'concurrence' was used, but that was
done merely to indicate that absolute discretion was not given to
anyone, not even to the Chief Justice of India as an individual,
much less to the executive, which earlier had absolute discretion
under the Government of India Acts.
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466. 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. The possibility of intrusion of
arbitrariness has to be kept in view, and eschewed, in
constitutional interpretation and, therefore, the meaning of the
opinion of the Chief Justice of India, in the context of primacy,
must be ascertained. A homogenous mixture, which accords with
the constitutional purpose and its ethos, indicates that it is the
opinion of the judiciary 'symbolised by the view of the Chief
Justice of India' which is given greater significance or primacy in
the matter of appointments. In other words, the view of the Chief
Justice of India is to be expressed in the consultative process as
truly reflective of the opinion of the judiciary, which means that it
must necessarily have the element of plurality in its formation. In
actual practice, this is how the Chief Justice of India does, and is
expected to function so that the final opinion expressed by him is
not merely his individual opinion, but the collective opinion formed
after taking into account the views of some other Judges who are
traditionally associated with this function.
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468. The rule of law envisages the area of discretion to be the
minimum, requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks
against arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable in a
satisfactory manner. Entrustment of the task of appointment of
superior judges to high constitutional functionaries; the greatest
significance attached to the view of the Chief Justice of India,
who is best equipped to assess the true worth of the candidates
for adjudging their suitability; the opinion of the Chief Justice of
India being the collective opinion formed after taking into account
the views of some of his colleagues; and the executive being
permitted to prevent an appointment considered to be unsuitable,
for strong reasons disclosed to the Chief Justice of India, provide
the best method, in the constitutional scheme, to achieve the
constitutional purpose without conferring absolute discretion or
veto upon either the judiciary or the executive, much less in any
individual, be he the Chief Justice of India or the Prime Minister.
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480. The primacy of the judiciary in the matter of appointments
and its determinative nature in transfers introduces the judicial
element in the process, and is itself a sufficient justification for
the absence of the need for further judicial review of those
decisions, which is ordinarily needed as a check against possible
executive excess or arbitrariness. Plurality of judges in the
formation of the opinion of the Chief Justice of India, as indicated,
is another inbuilt check against the likelihood of arbitrariness or
bias, even subconsciously, of any individual. The judicial element
being predominant in the case of appointments, and decisive in
transfers, as indicated, the need for further judicial review, as in
other executive actions, is eliminated. The reduction of the area
of discretion to the minimum, the element of plurality of judges in
formation of the opinion of the Chief Justice of India, effective
consultation in writing, and prevailing norms to regulate the area
of discretion are sufficient checks against arbitrariness."
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7. Mr. Dave also referred to the following observations of
Justice J.S. Verma (as His Lordship then was) in that very judgment:
"478. This opinion has to be formed in a pragmatic manner and
past practice based on convention is a safe guide. In matters
relating to appointments in the Supreme Court, the opinion given
by the Chief Justice of India in the consultative process has to be
formed taking into account the views of the two seniormost Judges
of the Supreme Court. The Chief Justice of India is also expected
to ascertain the views of the senior-most Judge of the Supreme
Court whose opinion is likely to be significant in adjudging the
suitability of the candidate, by reason of the fact that he has come
from the same High Court, or otherwise. Article 124(2) is an
indication that ascertainment of the views of some other Judges
of the Supreme Court is requisite. The object underlying Article
124(2) is achieved in this manner as the Chief Justice of India
consults them for the formation of his opinion. This provision in
Article 124(2) is the basis for the existing convention which
requires the Chief Justice of India to consult some Judges of the
Supreme Court before making his recommendation. This ensures
that the opinion of the Chief Justice of India is not merely his
individual opinion, but an opinion formed collectively by a body of
men at the apex level in the judiciary..."
8. Learned senior counsel also relied upon paragraph 44 of the
judgment in Special Reference No. 1 of 19984 (popularly known as
the "Third Judges' case") wherein the Court answered the questions
under Reference by clarifying as follows:
"44. The questions posted by the Reference are now answered,
but we should emphasise that the answers should be read in
conjunction with the body of this opinion:
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3. The Chief Justice of India must make a recommendation to
appoint a Judge of the Supreme Court and to transfer a Chief
Justice or puisne Judge of a High Court in consultation with the
four seniormost puisne Judges of the Supreme Court. Insofar as
an appointment to the High Court is concerned, the
recommendation must be made in consultation with the two
seniormost puisne Judges of the Supreme Court.
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4. The Chief Justice of India is not entitled to act solely in his
individual capacity, without consultation with other Judges of the
Supreme Court, in respect of materials and information conveyed
by the Government of India for non-appointment of a Judge
recommended for appointment."
9. Towing the aforesaid line, Mr. Dave proceeded to argue that
the modern trend in all robust legal systems governed by democratic
principles was to ensure that even administrative powers of the Chief
Justice must be shared with other senior Judges so that the power is
exercised properly and validly. In support, the learned senior counsel
referred to the system that prevails in the United Kingdom Supreme
Court, High Court of Australia (which is the apex court of that country),
Supreme Court of Canada, German Federal Court and even European
Court of Human Rights and European Court of Justice.
10. Mr. Venugopal, learned Attorney General, in reply to the
aforesaid arguments of the petitioner, submitted that the petitioner has
virtually accepted the legal position to the effect that the Chief Justice is
the 'Master of Roster' and in that capacity he also has the authority to
allocate the cases to different Benches/Judges of the Supreme Court.
Therefore, the grievance, essentially, of the petitioner was about the
manner in which such a power is being exercised. However, at the
same time, the petitioner had also made it clear that he was not questioning
particular decisions rendered by particular Benches which were assigned
some of the important matters, pointed out the learned Attorney General.
He submitted that the substance of the argument of the learned senior
counsel for the petitioner was that in order to ensure that the cases are
assigned in a fair and transparent manner, the term 'Chief Justice' should
be interpreted to mean 'Collegium' of five senior most judges including
the 'Chief Justice'. Response of the learned Attorney General was
that though such a mechanism, as a solution, was found out by this Court
in the judgments popularly known as Three Judges' case(s) for
appointment of Judges in the High Court as well as in the Supreme
Court, suggestion was totally impractical when it comes to discharge of
administrative duties by the 'Chief Justice' in his capacity as the Master
of Roster. Strongly refuting this suggestion, he argued that such an
interpretation was not only impractical, it would even result in a chaos if
day to day administrative work, including the task of constituting the
Benches and allocating cases to the Benches, is allowed to be undertaken
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by the 'Collegium'. His submission was that such matters of constituting
the Benches and allocating cases to the respective Benches has to be
left to the sole discretion of the 'Chief Justice' acting in his individual
capacity, for the smooth functioning of the Court, by reposing faith and
trust in the 'Chief Justice' who occupies the highest constitutional position
in the judiciary.
11. We have bestowed serious consideration to the submissions
made by the counsel on either sides. It may also be clarified at the
outset that this matter has not been treated as adversarial in nature.
This Court would also like to place on record that it does not dispute the
bona fides of the person like the petitioner, who enjoys considerable
respectability, in filing this petition. This Court has considered the entire
matter objectively and with great sense of responsibility. At the same
time, it also becomes our duty to decide the matter in accord with the
legal position that is contained in the Constitution and the Statutes and
the legal principles engrafted in the precedents of this Court having binding
effect.
ROLE OF THE 'CHIEF JUSTICE' AS THE MASTER OF
ROSTER
12. There is no dispute, as mentioned above, that 'Chief Justice'
is the Maser of Roster and has the authority to allocate the cases to
different Benches/Judges of the Supreme Court. The petitioner has been
candid in conceding to this legal position. He himself has gone to the
extent of stating in the petition that this principle that 'Chief Justice' is
the Maser of Roster is essential to maintain judicial discipline and decorum
and also for the proper and efficient functioning of the Court.
Notwithstanding this concession, it would be imperative to explain this
legal position with little elaborations, also by referring to some of the
judgments of this Court which spell out the scope and ambit of such a
power.
13. The petitioner has himself, in the petition, referred to a threeJudge Bench in State of Rajasthan v. Prakash Chand & Ors.5 held
that the Chief Justice of the High Court is the Maser of Roster and he
alone has the prerogative to constitute the Benches of the Court and
allocate cases to the Benches so constituted. The Court stated thus:
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"59. From the preceding discussion the following broad
conclusions emerge. This, of course, is not to be treated as a
summary of our judgment and the conclusions should be read
with the text of the judgment:
(1) That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the
first amongst the equals.
(2) That the Chief Justice is the master of the roster.