Supreme Court Roster: CJI Dipak Misra arrogating powers to himself is likely to aggravate crisis in apex court

The extraordinary and unprecedented press conference by the four senior-most judges of the Supreme Court, where they trenchantly criticised Chief Justice of India Dipak Misra’s functioning regarding the allocation of sensitive cases only to certain handpicked benches had set in motion a wave of speculation as to how India’s top judge was going to react to what was the judiciary’s biggest crisis since the Emergency. Now, by putting in place a judges' roster — a ‘subject-wise’ roster shows what type of cases will be listed before benches headed by the 12 senior-most judges of the apex court which is meant to come into effect from 5 February , Misra has ostensibly made an effort to show that he has risen to the challenge, but once one digs deeper, it shows that this is not the case. In fact, it is clear that he has only given impetus to further, stronger criticism his functioning. Concentration of Power [caption id=“attachment_4332481” align=“alignleft” width=“380”] File image of Chief Justice of India Dipak Misra. PTI[/caption] At the 12 January press conference, the four dissenting judges - Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph — were unanimous in stating that the Chief Justice of India was “the master of the roster” but is “only the first amongst the equals - nothing more or nothing less.” Convention recognised “the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court” and it was also “well settled in the jurisprudence of this country that the chief justice is only the first amongst the equals - nothing more or nothing less,” the judges said. This means that when it comes to judging cases, he does not have any greater power than any other Supreme Court judge. Moreover, even though he is the master of the roster, it doesn’t mean that he will concentrate all powers in his own hands. But one look at the roster shows that this is precisely what CJI Misra has done. As the master of the roster, he will hear all fresh Public Interest Litigation (PILs) and Letter Petitions filed in the Court. He will also hear Election Matters, Social Justice Matters, Contempt of Court Matters, matters dealing with appointment of Constitutional functionaries and law officers, and matters related to Commissions of Enquiry, among others.

Justice Chelameswar’s assignment includes Labour Matters, Land Acquisition, Consumer Protection, Compensation Matters, etc. Justice Gogoi will hear Personal Law matters, cases related to state excise and trading in liquor, among others. Justice Lokur will hear Environmental Law matters, Social Justice matters, cases related the Armed Forces etc, while Justice Joseph’s assignment includes Family Law Matters and Service Law Matters, among others.

As per the Supreme Court’s Practice and Procedure and Office Procedure, 2017, the roster of cases is prepared by the Registrar (Judical) of the apex court under the orders of the Chief Justice. “The roster shall be prepared by the Registrar (J-I) under the orders of the Chief Justice. It may contain general or special instructions regarding assignment/allocation of work to a Bench and includes allocation of work of a Bench, on account of non-availability, to another Bench,” it says. In order to meet contingencies, the Chief Justice may, from time to time, direct the Registrar (J-I) to prepare roster instructions or amendments for re-allocation of judicial work, the top court’s latest Practice and Procedure Rules say.

Considering the main complaint of the four judges on 12 January was that they were not being allocated sensitive cases despite their seniority, the new roster may serve to only aggravate the crisis which the apex court is already staring at. Particularly, the case pertaining to investigating the death of CBI Judge BH Loya who was presiding over the Sohrabuddin Sheikh staged encounter trial — which, in Justice Gogoi’s words at the press conference, was the case which acted as a catalyst for joint protest against the CJI.

It is also pertinent to know that in the week following the judges’ press conference, when CJI Misra had formed the Constitution Bench consisting of five judges who were to decide a slew of cases of seminal importance, he deliberately kept out the four judges who had spoken out against him. What escaped nobody’s attention was that it could easily be construed as an act of vendetta against dissent. Missing Institutional Mechanism The Second Judges Case of 1993, which laid the foundations of the collegium system, is is also premised on the idea that all power, even administrative, in such an important court, must not rest on the discretion of just one node, or the Chief Justice. But this is exactly what has happened with the present mechanism of the roster.

It is also a mystery as to why the roster is only about the presiding judges, and is silent about the other judges who would constitute the benches. This is unlike the system present in the Delhi High Court and other courts where each judge is allocated particular types of cases.

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As was widely reported in the media, the four senior-most dissenting judges had suggested the formation of a committee comprising those who would be CJIs in future, to suggest an institutional mechanism for marking cases. The latest allocation, according to the new roster, does not address that suggestion at all. It might even be construed that CJI Misra has pulled rank to ignore the serious contentions that the dissenting four, his brother judges, had raised against him.