Unbridled Power Of CJI As Master Of Roster, A Matter Of Concern

KEY TAKEAWAYS

• Senior Advocates Kapil Sibal and Mukul Rohtagi recently emphasized the concerns arising out of the unbridled powers of CJI as the "Master of Roster".

• Though the CJI has long been acting as the "Master of Roster" conventionally, it was in a 2018 that the Supreme Court officially acknowledged this role of CJI.

• Kapil Sibal referred to the CJI's powers as a 'flaw', which needs to be corrected.

• Mukul Rohtagi concurred with Sibal, saying that these unbridled powers of CJI are a matter of concern.

• Misuse of powers by CJI is evident, in view of the fact that many pleas, such as that by journalist Arnab Goswami, are taken up urgently, while many pleas involving public importance, such as the petitions against CAA or abrogation of Article 370, were sidelined and delayed for months.

INTRODUCTION

Recently, Supreme Court Senior Advocates Sri Kapil Sibal and Sri Mukul Rohtagi, while giving an address, emphasized upon the concerns that arise out of the "unbridled powers of CJI as the Master of Roster". They were addressing a virtual gathering at the book launch of "In Pursuit of Justice – An Autobiography" by late Justice Rajindar Sachar. The panel discussion was organized on the topic of Personal Freedom and Judiciary. The book itself contains the idea that "the CJI as the Master of Roster is a real problem facing the Judiciary."

BACKGROUND OF THE MASTER OF ROSTER & THE SHANTI BHUSHAN CASE

The CJI has been using acting as the Master of Roster in the panel of Supreme Court Judges conventionally since a long time, exercising the powers of deciding what matters need to be taken up, allocation of cases among other Judges and deciding which matters should be labelled for urgent listing, among others. Simply saying, the CJI is head of the entire registry functioning under the Supreme Court, and represents all the Supreme Court Judges.

However, these conventional powers of the CJI were acknowledged by the Supreme Court in 2018, in the landmark case of Shanti Bhushan v. The Supreme Court of India. Notably, the Petitioner herein was the former Minister of the Union Ministry for Law and Justice. The Petitioner herein had raised similar concerns regarding the same and stated that "the Master of Roster powers cannot be unguided and unbridled discretionary power, exercised arbitrarily by the Hon'ble Chief Justice of India."

The Petitioner had submitted that while exercising such powers, the term "Chief Justice" should be construed as a Collegium of five senior-most Judges exercising the powers in a shared manner, rather than the Chief Justice (individual) alone. The submission was primarily for the Chief Justice of Supreme Court, but was to apply on all the Chief Justices of various High Courts across the country.

However, the two-judge's Bench presiding over the case, comprising of Justices A.K. Sikri and Ashok Bhushan, dismissed the petition while making it clear that a Chief Justice occupies role of first among equals and has exclusive duty of allocating cases.

The Bench held that a Chief Justice alone is the Master of Roster, and can exercise inter alia the following powers:

• Heading the Supreme Court Registry,
• Allocation of cases to other Judges of the Court, and
• Deciding what matters need to be listed urgently.

The Court, while making this judgment, had heavily relied on two precedents. The first precedent was the case of Campaign for Judicial Accountability and Reforms v. Union of India , wherein a Constitution Bench headed by the then CJI Dipak Misra had held that the CJI alone is the Master of Roster. However, the judgment in this case was delivered amid some major controversies involving Justice Dipak Misra.

The second precedent relied upon was the judgment in the Ashok Pande case. Notably, the this petition in itself is considered concocted, for it was filed after the present petition (the one filed by Shanti Bhushan) but its judgment was delivered in merely two days holding the CJI to be the Master of Roster. Moreover, immediately after the judgment was delivered, the petitioner in this allegedly concocted petition, appeared against Shanti Bhushan during the hearing of his petition, stating that the Supreme Court had already decided the present matter.

Other than the two controversial precedents, the Supreme Court also relied upon the opinion of the Attorney General of India Sri K.K. Venugopal. The Attorney General had also defended the Supreme Court, opining that division of powers among a Collegium of five Judges would lead to unnecessary chaos and that there might not be consensus among the Judges. He further opined, that the Supreme Court can function smoothly and effectively only if the power was vested solely in the hands of the CJI.

PRESENT WORDS BY SIBAL AND ROHTAGI

In the virtual gathering at the book launch of "In Pursuit of Justice – An Autobiography" by late Justice Rajindar Sachar, the two Senior Advocates at the Supreme Court were called upon to deliver addresses on the topic "Personal Freedom and Judiciary". Kapil Sibal, in his address, first raised the topic regarding the concerns with CJI's powers as the Master of Roster, and pointed out that he has been raising this problem since years.

Sibal, during his address, mentioned the practical problems that arise when the CJI alone has the power of deciding what cases must be taken up and of allocating them among judges, without their opinions. Sibal also mentioned that, the CJI alone has the power to determine if Court should function during vacation or whether an urgent matter should be taken up immediately or not, calling it a flaw in the system that needs to be corrected.

Subsequently in his address, Senior Advocate Mukul Rohtagi concurred with Kapil Sibal, saying that "the unbridled powers of the CJI as Master of Roster are a matter of concern." Though Rohtagi said that the powers of CJI to decide what matters should be taken first is a worrisome issue, he also admitted that it is, at times, because of lawyers like himself and Sibal, who "run into the CJI's office", to get certain matters listed for the next day, which involve complex numbers and might cost tens of thousands of crores of rupees or thousands of jobs!

Even though both the Senior Advocates criticized the said powers of CJI, they defended the judiciary, for it was burdened with a plethora of cases on itself, and having the need for giving priority to certain cases over others.

CONCLUSION

The purported misuse of powers by the CJI is evident considering the present facts and circumstances. While many cases involving high profile persons are given more priority than other cases (like the bail matter of journalist Arnab Goswami was listed almost immediately, or when the Supreme Court even functioned at night time for the matter involving the former Finance Minister P. Chidambaram, while many cases involving ordinary citizens were pending to be listed since months!), listing of numerous matters of public importance, which required expedient intervention of the Apex Court, were delayed for months.

In the present times, the Supreme Court (particularly the CJIs) is already being castigated by significant masses for allegedly working in accordance with the ruling party (the criticisms have been intensified ever since the erstwhile CJI Ranjan Gogoi was nominated to a Rajya Sabha seat after expiry of his tenure). When the controversial Citizenship (Amendment) Act (CAA) was passed and the entire nation was shaken by protests against it, and by the violent clashes between those who supported and those who opposed the Act, the Supreme Court transferred the petitions from various High Courts to itself, and instead of giving any substantial order, went on a vacation and thus delayed the matter by a significant duration.

Furthermore, when in August 2019, the President abrogated Article 370 of the Constitution, vide an ordinance, and bifurcated the erstwhile States of Jammu & Kashmir while lowering them down from the status of State to that of Union Territories, the Center had curbed down protests by use of stringent measures and even detained several opposition leaders for unspecified time durations. Though admittedly, such measures were necessary to avoid imbalance and spread of wrongful propaganda in the region, it raised several questions relating to Human Rights in India. The Supreme Court, despite transferring all the petitions from various courts to itself, again made significant amount of delay before giving any substantial orders regarding the matter.

Even though it has been a convention of the CJI being the Master of Roster, and though this practice has been followed religiously without any significant opposition up until now, it is evident, in the present circumstances, that there must be some checks on the 'unbridled' powers of CJI. Even though the Attorney-General had rightfully opined that sharing of powers among several Judges might cause chaos and conflicts among them, there can still be certain measures to ensure that the powers are not misused. For instance, a provision for allowing a majority of certain number of Judges to override the CJI's discretion, would still ensure that the

CJI alone manages the roster but would prevent him from misuse of powers.
It is rightfully said through a maxim that, "Justice should not only be done, but also seen to be done!"