The Supreme Court today expressed its 'prima facie' disagreement that task of allocation of cases should be entrusted to the members of the collegium, which consists of five senior-most judges of the apex court, including the chief justice of India (CJI).
"It cannot be expected that the collegium will sit everyday or two-three days a week for this only. It is not a feasible solution," the court observed during the hearing of a PIL filed by former law minister Shanti Bhushan challenging the existing roster system and powers of the CJI to allocate cases.
"Prima facie, I do not think that the collegium should be entrusted with the task of allocating cases. You can come out with suggestions," Justice Sikri told senior advocate Dushyant Dave, appearing for Bhushan.
During the arguments, Dave said that "sensitive" cases should be allocated by the collegium as in a democracy, there was "nothing called absolute discretion" and there were matters which were "sensitive" for the nation and for survival of democracy.
He submitted that the Constitution speaks about the powers of the CJI and it was "not desirable" to leave that power to an individual and the top court registry should follow the Supreme Court Rules, which stipulate the procedure for the listing of cases.
The bench observed that power has been given to judges to protect the Constitution and democracy and the listing of cases was the discretion of the CJI, who is the 'master of the roster'.
However, the bench said there should be some in-house mechanism to deal with the issue of listing of cases.
"Frankly speaking, as far as the institution is concerned, judges and the judiciary are supposed to do justice. Bigger role, I always say, is to protect the Constitution and democracy. The Bar has an important role in this," Justice Sikri observed.
The bench also made it clear that the power to appoint judges of the Supreme Court or the high courts was entirely different from day-to-day affairs of the top court.
During the proceedings, Dave referred to 14 matters, including the plea challenging appointment of Gujarat cadre IPS officer Rakesh Asthana as a special director of the CBI, and said that in Asthana's case, the issue first came up for hearing before a bench headed by Justice Ranjan Gogoi, but later it was transferred to court number eight.
"In 14 cases, the CJI used his power and this raises very, very serious questions. In Asthana's case, Justice Gogoi heard it first. Then Justice Navin Sinha (who was part of the bench) recused. The rules says that the matter should be listed before Justice Gogoi's bench, yet it was taken to court number 8," he said.
To this, the bench said, "You may have a point, but when a case comes up for marking and when one of the judges has recused, it will come before the CJI."
Dave also raked up the issue of mentioning of cases when the CJI's court is sitting in a Constitution bench matter.
He referred to an order passed by a bench headed by Justice Jasti Chelameswar, the senior-most judge, after a matter relating to alleged bribes being taken in the name of judges, was mentioned before him by NGO 'Campaign for Judicial Accountability'.
Without referring to the merits of Justice Chelameswar's order, Dave said that since the CJI was hearing a Constitution bench case at that time, Justice Chelameswar's order in that matter was "valid".
On November 10 last year, a five-judge constitution bench had overturned the order passed by the bench headed by Justice Chelameswar, which had asked for setting up a larger bench to hear the matter of alleged bribes being taken in the name of judges.
The bench, however, made it clear that so far as the CJI being the master of the roster was concerned, there was no dispute and this has already been held in the recent verdicts.
The bench has posted the matter for hearing on April 27.
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