Supreme Court judges' rebellion over roster: A look at standard practices in courts around world
India is unique as it splits up the court into different benches which gives the CJI the power to influence judicial matters which he is not even a part of.
The country witnessed unprecedented events on Friday after four senior judges of the Supreme Court took their grievances against the Chief Justice of India to the media. In a letter addressed to the Chief Justice, the judges said that they were unhappy with the way cases were being allotted to different judges in the apex court.
The Chief Justice is the first among equals at the Supreme Court and his judgments carry no more weight than any other judge of the court. But the chief justice does have more administrative powers, which includes control on the roster. This means it is up to the chief justice to decide which set of judges hears which matters.
India is unique in this aspect as it splits up the court into different benches which gives the Chief Justice the power to influence judicial matters which he is not even a part of. Other countries around the world use different systems. However it must also be kept in mind that different countries ascribe different roles to their courts and those courts take up different amount of case loads. Therefore it is not a straight comparison between courts but one still worth discussing.
The highest court is the Supreme Court of the United States. It does not have to deal with the allocation of cases as all judges hear all cases which the court accepts.
Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10. Shortly after the Civil War, the number of seats on the court was fixed at nine. Today, it comprises a Chief Justice and eight Associate Justices. The US Supreme Court is known for accepting a minuscule number of cases filed before it. Each term, approximately 7,000-8,000 new cases are filed before it out of which the court grants and hears oral argument in about 80 cases.
The court hears cases in a panel of nine Justices (i.e. en banc). It is however not necessary for all judges to be present at a hearing as the quorum to decide a case is six. Justices may also participate in a case by listening to audio recordings of the oral arguments and reading the transcripts.
The corresponding court in the UK is the Supreme Court of the United Kingdom. It has a total of 12 Justices. Currently they are 10 men and 2 women, and they come from a variety of legal backgrounds but have all been practising barristers at one stage. The current President of the court is Lady Brenda Marjorie Hale while Lord Jonathan Hugh Mance is the Deputy President.
The court receives around 230 applications for permission to appeal and hears around 90 cases per year. The justices also serve on the Judicial Committee of the Privy Council (JCPC) which is the final court of appeal for some small commonwealth countries and British overseas territories. The JCPC hears around 40 cases per year.
The justices usually hear cases in a panel of five, although they have the potential to hear cases as a panel of seven or nine depending on the importance of the appeal. Cases are allocated on a random basis at the court, although either the President or Deputy President will sit on most cases, and in specialist areas other judges with particular expertise may be selected.
It is relevant to consider the South African Constitutional Court in this discussion as the South African Constitution and its early jurisprudence have been discussed extensively among comparative constitutional law scholars and other academics. Frequently, the Constitution has been described as a model document for protecting human rights and the court has been praised for advancing the cause of equality and justice.
The Constitutional Court is South Africa's highest court on constitutional matters. So its jurisdiction — the scope of its authority to hear cases — is restricted to constitutional matters and issues connected with decisions on constitutional matters. The court comprises of 11 judges and is headed by the Chief Justice of South Africa and the Deputy Chief Justice.
The Constitution requires that a matter be heard by a quorum of at least eight judges. In ordinary practice, all 11 judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed.
Thus here too the Chief Justice is not required to decide on the allocation of cases.
The High Court is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution. Its functions are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.
It comprises of seven Justices: the Chief Justice of Australia, currently The Honourable Susan Kiefel AC, and six other justices. In cases which involve an interpretation of the Constitution or if the court might need to overrule one of its previous decision or where the principle of law under consideration is of major public importance, a full bench of all seven Justices hears the matter.
Other cases which come to the court for final determination involve appeals against the decisions of lower courts and are dealt with by a full court of not less than two Justices. In addition there are certain matters which can be heard and determined by a single justice.
In this court, the chief justice "proposes" a roster of the court for each sitting. However, their power of assignment is recommendatory and not determinative. In the 1930s, Justice Starke emphasised this point by regularly sitting in cases in which he wanted to even if his name was not included in the roster "proposal".
The High Court of Australia is thus similar to the Indian court to an extent. However, because most important cases are decided by a full bench, the power of the Australian Chief Justice is more limited than that of the Indian Chief Justice.
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