Even as the Congress confirmed that it would not be bringing an impeachment motion against Chief Justice of India Dipak Misra, the Supreme Court is faced with a new controversy. Former Law Minister and veteran advocate Shanti Bhushan has filed a PIL before the apex court challenging the CJI’s power as ‘Master of the Roster’, in which he has alleged “gross abuse of powers” in relation to listing cases.
In November 2017, a Constitution Bench headed by CJI Misra had passed a judgment clarifying that the CJI alone had the power to decide which judges of the Supreme Court heard which case – as part of his/her prerogative as ‘Master of the Roster’. The judgment was controversial since it held that even if a case involved allegations of corruption or bribery against the CJI, he/she would still be the one to decide which judges to assign the case to.
Bhushan’s PIL seeks to check this “unguided and unbridled discretionary power”. According to the petition, this power has been exercised by the CJI and the Supreme Court’s Registry in a way that demonstrates “a pattern of favouritism, nepotism and forum shopping”, which threatens the independence of the judiciary, and therefore needs to be reviewed.
Gross Abuse of Powers
Bhushan submits that the CJI has used his power to list matters of general public importance and/or of political sensitivity before certain benches of the court only, which reflects, according to him, a gross abuse of the CJI’s powers and a negation of the Rule of Law.
The petition lists ten examples of such abuse, which relate to some of the biggest national controversies in recent months. These include:
The Judge Loya Death Investigation Case
Bhushan notes that the case was “surprisingly” ordered to be listed before Court No 10 of the Supreme Court, headed by Justice Arun Mishra. After this was specifically noted as a matter of concern during the press conference by the four senior judges of the court on 12 January, the bench eventually ordered that the matter be listed before an “appropriate Bench as per roster”.
However, there was no detailed roster in existence at the time, and eventually the matter was taken up in the court of the CJI himself.
The CJAR Medical Bribery Petition
This was the matter which led to the CJI’s ‘Master of the Roster’ judgment. A petition by the Campaign for Judicial Accountability and Reforms was mentioned urgently in November 2017 before Court No 2, headed by Justice Chelameswar. Though mentionings are normally supposed to take place in the CJI’s court, this petition was filed in Justice Chelameswar’s court as the CJI was presiding over a Constitution Bench hearing the Delhi vs Centre case, and the petition itself involved potential allegations against the CJI.
The CJI had the matter taken away from Justice Chelameswar’s court, and asserting his power as ‘Master of the Roster’, referred it to a separate bench of Justices RK Agrawal, Arun Mishra and AM Khanwilkar. This bench went on to dismiss the petition in December 2017, and imposed costs of Rs 25 lakh against the petitioners.
The Centre for Public Interest Litigation’s 2G Case
Another matter listed before Justice Chelameswar’s court in November 2017, another matter taken away and placed before the CJI himself. After the two judges sitting with the CJI recused themselves, the matter was then placed before a bench presided over by Justice Arun Mishra.
Bhushan notes that this was done “even though other Benches of senior Hon’ble Judges were available.”
The Aadhaar Case
Bhushan’s petition points out that the Aadhaar case was originally heard by a bench including Justices Chelameswar and Bobde back in 2015, who had referred it to a higher bench to decide the issue of right to privacy. Both these judges were part of the 9-judge bench that held that privacy is a fundamental right in August 2017.
However, Bhushan points out that both have been excluded from the Constitution Bench deciding on the validity of Aadhaar, which was set up by CJI Misra.
The Land Acquisition Per Incuriam Judgments Controversy
In February 2018, a 3-judge bench headed by Justice Arun Mishra held a 2014 decision about land acquisition law by another 3-judge bench to be incorrect – something which most legal experts believed should not have been possible. Justice Lokur, who had been part of the 2014 decision, passed an order requesting the courts not to make any decisions about this issue until his bench, which was hearing another land acquisition matter, decided whether a larger bench was needed to resolve the conflict.
Despite this, multiple land acquisition matters dealing with this issue were listed before Justice Mishra’s bench, and he passed orders in these before the CJI finally decided to list the matter before a higher bench – headed by him.
Need for Review of Procedures
Bhushan argues that vesting so much power in the CJI’s hands is contrary to the Constitution, the Supreme Court’s Rules and Handbook, and the values that the judiciary is supposed to espouse.
As a result, the petition asks for the following:
- That listing of Supreme Court cases be strictly on the basis of the Supreme Court Rules 2013 and the Handbook on Practice and Procedure and Office Procedure;
- That in interpreting the Rules and Handbook, the powers vested in the CJI should be construed as lying with not just the CJI but a collegium of 5 senior judges of the Supreme Court.
- That the CJI be prevented from listing matters in a different manner from that specified in the Rules and Handbook.
Since the PIL lists the CJI as one of the parties to the case, Bhushan’s covering letter argues that the case should not be heard by a bench which includes him. This touches on another issue raised against CJI Misra – that his new system of assignment of cases has ensured that all PILs are to be heard by his courtroom only. As a result, Bhushan has asked that the next three senior-most judges of the court should decide how to proceed with the petition.
You can read the whole petition here:
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