Sravasti Dasgupta 
New Delhi: Amid recent questions raised regarding the opacity of the functioning of the Supreme Court, the role of the Chief Justice of India as the “master of the roster” and the “perception of a remote control” in the apex court, former judges of the Supreme Court, high courts and senior advocates came together at a seminar organised by the Campaign for Judicial Accountability and Reforms, in collaboration with The Wire and LiveLaw.
Speaking at the first session titled ‘Supreme Court Judicial Administration & Management – Issues and Concerns’ on Saturday (February 24), former Supreme Court judge Justice Kurien Joseph said that “there is a perception in the minds of the public that the master of roster business is not handled the way it should be handled.”
Justice Joseph said that the Chief Justice of India is the guardian of the Constitution of India and a judge’s job is to uphold the constitution and laws. “(A judge’s) conscience is not special, his conscience is the constitutional conscience. It is not formed by his ideology or patrons who have helped him reach that position. He is the conscience keeper of the constitution. Whatever he does is done only to uphold the constitution.”
The issues and problems of allocation of cases to benches by the Chief Justice of India, who is regarded as the ‘master of roster’, was underlined at a press conference of the four senior most judges of the Supreme Court in January 2018.
Referring to the press conference, in which both Justice Joseph and Justice Madan Lokur had participated, along with Justices J. Chelameswar, Ranjan Gogoi, Justice Joseph said they held meetings for two weeks with incoming Chief Justices and came up with a suggestion that the “master of roster exercise should be appropriately regulated to avoid perceived arbitrariness.”
Justice Joseph said that while he does not believe that any CJI is arbitrary but there may be a perception in the public. “There is even perception of a remote control in the Supreme Court,” he said, adding that he had said the same at the time of his retirement.
He suggested that the master of roster business should be dealt with by the first three judges of the Supreme Court and take a call on listing of cases, constitutional decorum subject allocation of cases and what to do in a case the judge recuses from the case.
“These are the four situations in which the master of the roster has to act sensitively even though it has now become sensational. It is sensational because its constitutional sensitivity is not being considered the way it should be,” he said.
On the constitution of benches on important constitutional matters, he suggested, “Regional and gender diversity should be reflected.” He added that nowadays the trend is that if a case is before a bench, “people are able to predict what the result is.”
The other speakers at the session included former judge of the Supreme Court, Justice Lokur; Justice Ajit Prakash Shah, former Chief Justice, Delhi high court; Justice Rekha Sharma, former judge, Delhi high court; Justice Govind Mathur, former Chief Justice, Allahabad high court; Kamini Jaiswal, advocate, Supreme Court; senior advocate Meenakshi Arora; advocate Gautam Bhatia; and Prashant Bhushan, advocate and convenor, Campaign for Judicial Accountability and Reforms (CJAR).
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‘When a case goes before a particular bench, this is going to be the result’
Justice Lokur while agreeing with Justice Joseph said, “Today, the perception is that when the case goes before the particular bench, this is going to be the result.”
Referring to former JNU student and activist Umar Khalid withdrawing his bail plea in the Supreme Court earlier this month in connection with the Delhi riots larger conspiracy case, he said that it was done as “the lawyer knew the fate of that case.”
“You have had the case of Umar Khalid asking for bail, which has not been listed for a long time. There have been 13 adjournments. Ultimately, the lawyer said that we wanted to withdraw the case because they knew what the result was going to be. They knew the fate of that case,” he said.
Justice Lokur said that the first instance, according to him, when a chief justice exercised the power of the master of roster to change a bench was following the anti-Sikh riots in 1984.
Referring to former Delhi high court Justice Rajinder Sachar, who wrote in his autobiography about the taking away of the 1984 anti-Sikh riots case from his board, Justice Lokur said that during the course of the hearing, “it appeared that Justice Sachar, who was a great civil rights activist, was taking a particular view which was not helpful to the government. This was sometime in December. After the court vacations were over, in January, Justice Sachar found that the case had been taken away from his Board.”
“He took it up with the Chief Justice, but nothing happened…That was as far as I know the first documented case of a Chief Justice exercising the power of master of roster to list a case before a particular bench or to take it out of a particular bench so that an order which the Chief Justice did not want could not be passed,” said Justice Lokur.
Referring to the cases of Arnab Goswami and G.N. Saibaba, he underlined that the issue is when a matter is listed and where. “You would have a situation where somebody, a journalist, wants bail, the case is listed the same day maybe in the evening…somebody has been granted bail, the prosecution says grant of bail by the High Court is wrong…so a special bench sits on a Saturday and stays that order, which is very very unusual, so that the person does not come out of jail. Why should that happen?”
He also contrasted the cases with Khalid’s case, Article 370 case and electoral bonds case that were not listed for years. Offering two solutions, Justice Lokur said that one could be to pass on the message so “corrective steps are taken.” The other solution, which he referred to as more “fearsome” was Parliament enacting a legislation on how the apex court should function.
“We have had that example very recently in the appointment of election commissioners when the Supreme Court gave a direction and the parliament made a law and removed the CJI and included a cabinet minister,” he said.
“Lawmaking is a solution, but it is a very fearsome and fearful solution that is available under the constitution. Before that happens, I think, we need to get our act together and ensure that there is justice in listing both in time and benches,” Justice Lokur added.
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‘Who assigns the case and who decides the matter’
Former Delhi high court judge Justice Rekha Sharma said that the question is not just about the roster of judges, but “who assigns the case and who decides the matter,” she said.
In an apparent reference to former Chief Justice Ranjan Gogoi, who led the five-judge constitution bench in the Ayodhya title dispute case and subsequently was appointed to the Rajya Sabha, Justice Sharma said there are three pronounced advantages of the roster system which “fortunately or unfortunately have become public.”
“Number one, the master of the roster can constitute a bench of his own choice and himself preside over it even in the very personal matter. Number two, by intelligently making use of that power, he can assure himself even after his retirement, a cosy job like a seat in Rajya Sabha or governorship in some state. Number three, by intelligently using his power he can equally benefit his very worthy and dearest colleagues too,” she said.
‘Loss of public confidence’
Senior advocate Meenakshi Arora said that a case like Khalid’s being withdrawn from the Supreme Court shows a “loss of public confidence in an institution altogether.”
Arora said justice has to be uniform and in criminal cases there is a need to declare which criminal bench is likely to hear which category of cases-whether death penalty, economic offences or others.
“Once you have done that the earmarking of cases should be by automation and no hand must come,” she said.
Arora said there mechanisms should be brought to regulate the office of the master of the roster.
“The master of the roster today is unregulated and requires much more transparency and accountability for the acts that are being done by that high office. There is no grievance redressal mechanism of the working of the master of roster. This office is more inclined towards the rule of a man than rule of law. We are reposing this power to one individual to which there is no check and balance,” she said.
Jaiswal said that the most concerning issue is the “post retirement jobs” being given to judges.
“You find them working very well till they reach the top. When they reach near retirement, they turn into a new cover, which is not a nice cover. The question of constitution and listing of cases must have guidelines, roster system works as per subject. I don’t think once a roster is made the chief justice should have any say in transferring from one bench to another.
She added that in super sensitive matters of national importance, “it is necessary that the decision cannot be left to one individual.”
“It has to be done by at least three senior-most judges of the Supreme court,” she said.
In his speech, Bhushan pointed out that recent judgments by the Supreme Court in the electoral bond case and Chandigarh mayor election case has rekindled hope in the apex court.
He also reiterated, citing a petition filed by Shanti Bhushan in 2018, that was dismissed by the apex court, that said the master of roster system should not be with one individual but five senior-most judges.
Referring to former CJI Ranjan Gogoi, who was part of the bench that heard a sexual harassment case against him, Bhushan said the master of roster “can be abused arbitrarily.”
“That shows how this power of the master of the roster can be abused so arbitrarily and sometimes for their own cause. Often for the benefit of the government or the state or sometimes for their own cause if they choose to do so,” he said.