The Supreme Court today decided to examine a plea challenging the existing roster system and powers of the Chief Justice of India to allocate cases while observing that the CJI's position as 'master of roster' cannot be "disputed".
The apex court prime facie did not agree with contention of former Law Minister Shanti Bhushan, who has filed the PIL, that the collegium of five-senior most judges should be entrusted with the task of allocating cases and asked Attorney General K K Venugopal to assist the court in the matter.
A bench comprising justices A K Sikri and Ashok Bhushan also took strong exception when an attempt was made to rake up the issue of the unprecedented January 12 press conference by four seniormost top court judges -- J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph -- who had accused CJI Dipak Misra of arbitrarily allocating cases.
"We are not going to go into it. We are not concerned with it for many reasons and obvious reasons. Do not say all this. Do not bring it here," the bench told senior advocate Dushyant Dave, who was representing Bhushan.
"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 observed.
Dave questioned the manner in which cases were allocated and claimed that though there were Supreme Court rules which the registry was bound to follow while listing a petition, the CJI was using his discretion in some "exceptional matters".
He argued that in a democracy, there was "nothing called absolute discretion" and said there were matters which were "sensitive" for the nation and for survival of the democracy.
However, Justice Ashok Bhushan observed, "It would be very difficult to decide which is a sensitive matter and which is not. For you, some matters will be sensitive but for others, it may not be sensitive. It is difficult to decide."
"As far as CJI being the 'master of roster' is concerned, there is no dispute. In a way, you are challenging the manner in which this power is exercised," the bench observed and referred to the apex court's verdicts which had held that the CJI is the 'master of roster'.
Regarding Bhushan's demand that 'sensitive' cases should be allocated by the collegium, the bench said if it would be done, then the collegium would have to sit daily or two or three times a week for this only.
"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, adding, "Now another question rises. Whether all this is justiciable or not?"
The top court observed that better course to deal with it would be that there should be some "in-house mechanism" and it should be subject to self-governing mechanism.
Dave said the PIL has raised substantial question of interpretation of constitutional provisions and principle of administrative law.
He clarified that they were not against any individual and do not propose to make any personal allegations against anyone.
Senior lawyer Kapil Sibal, who also argued in the matter, said they have come to the court "with a heavy heart" and they were "really troubled" with the way affairs of the top court were being handled.
"The problem is that we are troubled. Truly troubled. We are not against any individual. This is the highest court of this land. We have to respect the institution. We are troubled how it is being handled today. We are not attributing any motives to anyone," he said, adding, "it is very painful for us having practiced in this institution for 40-45 years."
However, Justice Sikri asked, "Can this all be done in the judicial side?"
Sibal said that the court would have to do it for public at large so that faith of people was not lost and judiciary was not denigrated.
"It can only be done by an order of Supreme Court that can never be challenged," he said and termed as "unacceptable" the way matters were allocated.
Dave questioned the way a constitution bench had interpreted that the CJI has the discretion in allocation of matter while the other senior judges of the court had none.
"Everyday cases are filed and you are saying that for allocation of each and every case, the five judges should sit and the CJI should convene the collegium. Lakh of cases are there," the bench said.
Dave, however, said that matters must be allocated automatically according to the roster but that was "not happening" and the registry should be asked to explain this.
He referred to 14 cases, including the plea challenging the appointment of Gujarat cadre IPS officer Rakesh Asthana as a special director of the CBI, and questioned the manner in which these matter were allocated to particular benches.
"This court is the bedrock of the Constitution," he said and also raised the issue of mentioning of matter before court number two when the CJI sits in a constitution bench.
In his PIL, Shanti Bhushan stated that the "master of roster" cannot be unguided and unbridled discretionary power, exercised arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to particular judges.
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