The role of the ‘Master of Roster’ started out as an administrative power of the Chief Justice of India (CJI), a first among equals (of his/her fellow judges) to designate benches to hear matters.
This power, vested in one individual, has the power to determine everything happening in this country. This is not an exaggeration: from what relationships are legal, to what governments must be allowed, to how should it govern, it controls our social lives in more ways than we can even imagine. Unlike other institutions under our constitution, which have checks and balances, this power does not appear to have any limitations. The late Shanti Bhushan, a doyen of the bar, had earlier tried to get the Supreme Court to limit the power of the CJI as the master of roster in Shanti Bhushan vs Supreme Court of India (2018), but in vain.
At least in the last five years, major controversies in the Supreme Court have begun with questionable use of this power by the CJI. Examples include the press conference by the four senior Supreme Court judges against the then sitting CJI Deepak Mishra, CJI Ranjan Gogoi presiding over a court that dealt with his own alleged harassment of a female employee, CJI U.U. Lalit’s constituting an extraordinary bench on Saturday – a holiday for the court – to stay the former Delhi University professor G.N. Saibaba’s discharge in a Maoist links case, and the recent use of power by the sitting CJI to review co-ordinate bench judgments.
While this power can be used appropriately too, glaring abuses are too hard to ignore. Recently, a new form of abuse of jurisdiction was seen in the Supreme Court, all traceable to the power of the master of roster, which harmlessly emanated on the administrative side, but soon converted itself into a destructive force on rule of law and stability of Supreme Court jurisprudence.
The Supreme Court of India. Photo: Pinakpani/Wikimedia Commons, CC BY-SA 4.0
Two conflicting judgments
Recently, two separate judgments by the Supreme Court have generated a furore and exposed the necessity to limit this power. To understand the judgments, we need to understand the basics of the default bail provision. Under Section 167 of the Criminal Procedure Code, the investigating authority must file a chargesheet within 60 or 90 days of a person’s arrest, depending on the charges filed. If a chargesheet is not filed within the stipulated time, then the accused accrues a right of default bail.
First, the judgment was rendered by a bench of Justices M.R. Shah and C.T. Ravikumar in Qamar Ghani Usmani vs The State of Gujarat, wherein the judges held that if the party has not filed an application seeking default bail during the first extension, then the party forfeits the right to apply subsequently. This position postulates two consequences, the first is that default bail is not an indefeasible right; second, an application by the investigating authority for further investigation takes precedence over default bail, wherein the court has to give primacy and hear the application for further investigation before considering default bail.
On the other hand, Justices Krishna Murari and Ravikumar, gave a second judgment in Ritu Chhabaria vs Union of India, wherein they held that an accused is entitled to default bail if the chargesheet is dummy and was filed with lacunae, which required further investigation. Accordingly, the process of further investigation and grant of default bail was separated. This view upheld the idea of liberty and the presumption of innocence over the rights of the state to investigate.
Comparing both judgments, which are at loggerheads with each other in substance, makes it imperative to understand the importance of default bail in the criminal justice system. The second judgment seeks to make the investigating agency more efficient and time-bound, whereas the former creates a wide gap to be misused by the authorities and makes the process itself a punishment. In comparing the judgments, one ironic fact is that Justice Ravikumar seems to have dissented from his own earlier view implicitly, and has sailed with a more rights-oriented approach in the second instance.
In any case, the interesting twist is that the Union government, suddenly waking up to the implication of the second judgment, mentioned before CJI D.Y. Chandrachud an application to recall the judgment by Justice Murari. In a strange turn of events, the CJI, without any reasons, listed the matter before a three-judge bench (CJI Chandrachud, Justices P.S. Narasimha and J.B. Pardiwala) on May 4. The bench, however, could not hear the matter on May 4, as it did not reach the board by 4 pm and is likely to be listed on another day. As per the order, it will now be listed before the same bench again on May 12 and heard at 2 pm. The order added that until then, the the indirect ‘stay’ imposed on Justice Murari’s judgment will continue.
On May 1, the bench of the CJI and Justice Pardiwala had ruled as follows:
“In the meantime, in the event that any other applications have been filed before any other Court on the basis of the judgment of which recall is sought, they shall be presently deferred beyond 4 May 2023.”
The CJI, on that day, was reluctant to ‘stay’ Justice Murari’s order, as requested by solicitor general Tushar Mehta, calling it far-fetched. The result of the order, pronounced by the bench, was nothing but an ex-parte stay on the judgment, pronounced by a brother judge, which is unheard of.
Although mere listing order may look harmless at the outset, it indicates deeper problems for the institution.
The power of master of roster vested in the CJI appears to have now consolidated into an arbitrary unending discretion, wherein the CJI can randomly pick and choose matters to be considered worthy of a relook, without having to go through the process of reference to a larger bench, review etc.
Such power tends to create an appellate court within the Supreme Court itself, wherein the CJI now becomes ‘master of all judges’, not merely of the roster. A democratic country cannot accept such consolidation of powers with optimism that it will not go south. If there is any presumption, it must be that it is bound to go that way.
One is compelled to quote Lord Acton again, “Power tends to corrupt and absolute power corrupts absolutely.” History has shown that great men are also corruptible, even when they exercise influence and not authority.
The possibility of better ends in isolated instances cannot justify the means or numerous instances of abuse which are likely to occur. In this light, there is an immediate need for all to rethink if any one individual, incumbent as CJI, should continue to wield this power.
Sughosh Subramanyam is a practising advocate before the Supreme Court of India and various high courts.
