Shanti Bhushan v. Supreme Court Of India Through Its Registrar And Another

Per Dr Sikri, J.

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 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 stereotypes. One, perpetuated by 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 the case would be what majority decides. The word “first” in the aforesaid expression signifies only the fact that the “Chief Justice” is the seniormost Judge of the Court.

(Para 24)

State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1; Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196 : (2018) 1 SCC (Cri) 327; Asok Pande v. Supreme Court of India, (2018) 5 SCC 341, relied on

Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 1, referred to

The second stereotype is that being the “Chief Justice” and seniormost 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. In the Indian context, this power was given statutory recognition by Section 214(3) of the Government of India Act, 1935.

(Para 25)

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 in clause (1) of Article 145. The 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 the respective High Courts for regulating its procedure. It is thus undisputed that “Chief Justice” is the Master of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court.

(Paras 26 and 15)

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 27)

Keeping in mind the aforesaid postulates, it is difficult to accept the argument of the petitioner that the expression “Chief Justice” is to be read as “Collegium” consisting of five seniormost Judges, including the Chief Justice. The basis of this argument is the judgment of the Supreme Court in Supreme Court Advocates-on-Record Assn., (1993) 4 SCC 441 which laid the foundation of the Collegium system for the appointment of Judges. The concept of Collegium was innovated by judicial interpretation in the context of appointment of Judges in the constitutional courts i.e. the Supreme Court as well as the High Courts. As far as the Executive is concerned, it will have virtually no role in such appointments, except the minimalist role specifically delineated in the judgment. This kind of system which is devised for appointment of Judges cannot be replicated when it comes to the role of the Chief Justice as Master of Roster. The judgments cited by the petitioner are in the context of Article 124 of the Constitution wherein the expression “Chief Justice” was read as Collegium, after examining the constitutional scheme and the objective behind such a provision meant for appointment of Judges. The rationale provided in that context cannot be adopted while interpreting Article 145 of the Constitution, the purpose whereof is altogether different. The ratio of a judgment is what it decides and not what logically follows therefrom. The observations in the Three Judges cases are to be read in the context in which they are rendered. Once that is kept in mind, conclusion is that the ratio of those judgments cannot be extended to read the expression “Chief Justice”, wherever it occurs, to mean the “Collegium” of the senior Judges.

(Paras 29 to 31)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441; S.P. Gupta v. Union of India, 1981 Supp SCC 87; Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739, distinguished

The Chief Justice, as the head of the Supreme Court of India, and the Chief Justices of the High Courts, have to perform many other functions, on the administrative side, in their capacities as Chief Justices. Framing of the Roster and constituting the Benches is one among them. The task of constitution of Benches and allocation of specific cases to those Benches, can more smoothly be performed by the Chief Justice and discharge of such a function by the Collegium would be unworkable and also lead to many practical difficulties. 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.

(Paras 29, 30 and 23)

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, or for that matter the High Courts. When it comes to assigning the cases to a particular Bench, it has to be 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 clearly impracticable.

(Para 30)

The Constitution-makers reposed great trust in the judiciary by assigning it the powers of judicial review of not only the administrative acts of the Government/Executive but even the legislative acts of the Legislature. In the process, judiciary discharges one of the most important functions, namely, the administration of justice. It does so by upholding the rule of law and, in the process, protecting the Constitution and the democracy. Our Constitution guarantees free speech, fair trials, personal freedom, personal privacy, equal treatment under the law, human dignity and liberal democratic values. This bundle of non-negotiable rights and freedoms has to be protected by the judiciary. For this reason, independence of judiciary is treated as one of the basic features of the Constitution. Four major aspects of judicial status or performance are: independence; impartiality; fairness; and competence. The judiciary even without the sword or the purse, remains the guardian of the Constitution. Its sole strength lies in the public confidence and the trust.

(Paras 34 and 36)

State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501; State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1; S.P. Gupta v. Union of India, 1981 Supp SCC 87; Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, relied on

Alexander M. Bickel, The Least Dangerous Branch, referred to

The faith of the people is the bedrock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. We live in an age of accountability. What is required of Judges is changing. Judgments of the courts are widely discussed, debated and even criticised. In this age of technology, open society and liberal democracy coupled with varied nature of cases raising complex issues which are decided by the courts, including “hard cases” any outcome whereof may be susceptible to criticism, as both views may appear to be equally strong. In that sense, judiciary walks the tightrope of independence. It has also become a regular feature that even laymen, who are constitutionally illiterate, enter such debate and evaluate the outcomes influenced by their emotions, rather than on legal or constitutional principles.

(Para 39)

The world is changing fast. However, the fundamental qualities which the public seek in a Judge have remained the same, as these are eternal verities, which will never change. These are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of law, moral courage or fortitude, and a total commitment that justice should be administered according to law. At the end of the day, it is the virtue of righteousness, impartiality, objectivity and scholarship which a Judge commands to ensure respectability to his judgment. Of course, the matters need to be listed and assigned to the Benches in accordance with the Supreme Court Rules, 2013 and Handbook of Practice and Procedure.

(Paras 40 and 43)

In the aforesaid backdrop, role of the “Chief Justice” as Master of Roster also assumes much significance. Each “Chief Justice” performs his role by consultation and consensus, after taking into account various factors including individual Judges' interests and abilities, their specialisation in a particular area, their capacity to handle particular type of cases and many other relevant considerations. However, the exercise of such a power with wisdom has to be left to the “Chief Justice” who is given the prerogative of the “Master of the Roster”.

(Para 41)

The judicial systems in different countries have different styles of functioning and the practices have been developed in various countries keeping in view the structure of the courts. Even the procedural characteristics of litigation are different. Therefore, system prevalent and developed in one jurisdiction cannot be mechanically adopted by judicial system in other countries. At the same time, there is no harm in adopting those healthy practices which have been developed in foreign jurisdictions and which can be easily adopted because of their universal application. After all, no system is foolproof. There is always a scope for improvement. Reforms in the administration of justice, whether on judicial side or administratively, is a continuing process.

(Para 42)

Having regard to the above principles it is difficult to accept the prayer of the petitioner that the expression “Chief Justice” appearing in the Supreme Court Rules, 2013 be read as “Collegium” of five seniormost Judges for the purpose of allocating the matters.

(Para 44)

Per Ashok Bhushan, J. (concurring)

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 the above, the power of the Chief Justice to allocate cases flows from rules framed under Article 145 of the Constitution of India.

(Para 67)

Article 145 empowers the Supreme Court to frame rules with the approval of the President. The words “practice and procedure” of the Court are wide enough to include practice and procedure relating to preparation of roster and allocation of cases. Chapter VI of the Rules framed by the Supreme Court under Article 145 specifically refers to the Chief Justice, who is to nominate Bench for hearing every case, appeal or matter. The submission that the Constitution does not specifically mention Chief Justice to exercise power of allocation of cases and constitution of Benches, hence, the Chief Justice is not empowered to do the same, is not a valid submission. When the Rules framed under Article 145 specifically empower the Chief Justice to nominate Benches for hearing cases or appeal, non-containing of any specific provision in the Constitution empowering the Chief Justice to frame the roster to allocate the cases is inconsequential since the entire subject was to be covered by Rules made under Article 145. Under the constitutional scheme itself as contained in Article 145, the practice and procedure of the Supreme Court is to be regulated by the rules made by the Supreme Court with approval of the President. When the statutory rules are framed the entire business of the Court which is covered by the Rules has to be dealt with accordingly.

(Paras 74, 79, 80 and 84)

State of U.P. v. Neeraj Chaubey, (2010) 10 SCC 320 : (2010) 3 SCC (Cri) 1281 : (2010) 2 SCC (L&S) 800; Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196 : (2018) 1 SCC (Cri) 327; Asok Pande v. Supreme Court of India, (2018) 5 SCC 341; State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1; D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216, relied on

Northern Securities Co. v. United States, 1904 SCC OnLine US SC 63 : 48 L Ed 679 : 193 US 197 (1904), referred to

Inder Mani v. Matheshwari Prasad, (1996) 6 SCC 587, cited

In Raghubir Singh, (1989) 2 SCC 754, a Constitution Bench of the Supreme Court noticed that as a general rule of practice and convenience, the Court should sit in Divisions and each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention.

(Para 64)

Union of India v. Raghubir Singh, (1989) 2 SCC 754, relied on

The submission that in allocating cases and formulating Benches of the Supreme Court, the words “Chief Justice” should be read as Collegium is unfounded and unacceptable. There is no indication in any of the constitutional provisions or rules framed thereunder that for allocation of cases and formation of Benches, The Chief Justice should be read as Collegium. For reading Chief Justice as Collegium, under Article 124, there was a constitutional basis. Article 124 reveals two necessary ingredients regarding consultation i.e. (i) Chief Justice of India shall always be consulted in case of appointment of Judges other than the Chief Justice; (ii) the President shall make appointment after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. In addition to consultation with the Chief Justice of India, consultation with other Judges was specifically made part of the constitutional scheme. The Supreme Court in Second Judges case and Third Judges case taking note of the above constitutional scheme has read the word “Chief Justice” as Collegium. Thus, the reason for reading the word “Chief Justice” as Collegium in Article 124 has constitutional basis as elaborated in Second Judges case and Third Judges case.

(Paras 73, 74 and 76)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441; S.P. Gupta v. Union of India, 1981 Supp SCC 87; Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739, distinguished

The further submission that the Full Court should allocate cases and allocate the Benches also run counter to the constitutional scheme read with the rules framed under Article 145.

(Para 83)

The law settled by the Supreme Court including three-Judge Bench and Constitution Benches are binding on the present Bench and settled law cannot be unsettled on the premise on which the entire writ petition is founded.

(Para 85)

Chapters V, VI and XIII of the Handbook on “Practice and Procedure and Office Procedure (2017)” provide for the conduct and business of the Court in an orderly manner with certainty, there cannot be any dispute that when a procedure is laid down to be followed by the officials of the Supreme Court, all business is to be transacted in the said manner. However for the purposes of this case, it is not required to dwell into listing of some cases as enumerated in the writ petition for the petitioner candidly submitted that the petitioner is not questioning any order or judgment referred to in the writ petition.

(Para 86)

As regards the international practices (pertaining to case assignment in the United Kingdom Supreme Court, the High Court of Australia, the Supreme Court of Canada and the practice in the United States Supreme Court referred to by the petitioners) cannot be imported in the constitutional and statutory scheme of the Supreme Court. The practices and functions of each Court are different which has been evolved by time looking to the particular background and set of facts. The practice of a court ripens into a convention by passage of time and rich heritage of conventions are time tested which is followed by different courts. The conventions and practice of the Supreme Court are time tested which practice and conventions of the Court have ripened with time which need not to be tinkered with or imitated from different international practices of different courts. The law laid down by the Supreme Court is that; the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice.

(Para 87)

Working of any system is a continuous process and each and every organisation endeavours to improve the working of its system suitable to circumstances and the need. Improvement of functioning is always a goal of every system and all organisations endeavour to improve the system, which is always a welcome step. The Supreme Court cannot be an exception to the above objective and goal.

(Para 90)

R-D/60749/C