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“Somethings are best left unsaid”, Supreme Court Justice SK Kaul reportedly said on Tuesday, 3 December. His remark came after petitions against the Central Government in a case pertaining to delays in the appointment of judges were not listed on the given date — despite the top court's directions.
Justice Kaul did, however, clarify (as per Livelaw) that he had not been the one to delete the matter. He also added that he was sure the Chief Justice was aware of it.
The petitions, in this case, were filed over alleged delays by the Central Government in the appointment of judges. The apex court bench of Justices SK Kaul and Sudhanshu Dhulia had, in the previous hearings, come down heavily on the government for its “pick and choose” approach in appointments.
Justice Kaul had also said that he would monitor the progress made in this regard by listing the matter at regular intervals. However, it may be noted that the apex court is closing for winter vacations on 15 December and Justice Kaul, himself, will retire on 25 December. Thus, if the matter is taken up after next week, Justice Kaul will not be the one to hear it.
Noting that the appointment of judges is a matter of great public interest, former Supreme Court Justice Madan Lokur told The Quint that "the registry cannot hide behind a veil of secrecy."
"The registry has to be far more careful. It is answerable to the court and the judges who had given the directions for listing. And it is answerable to the public. The public is entitled to know what transpired, why it transpired, and whether any corrective measures are being taken," Justice Lokur added.
Dushyant Dave's Letter on Listing of 'Sensitive Matters'
Meanwhile, on Wednesday, a senior advocate of the Supreme Court wrote a letter to Chief Justice of India DY Chandrachud lamenting “certain happenings about the listing of cases by the Registry of the Supreme Court.”
As per Senior Advocate Dushyant Dave, “sensitive matters” involving human rights, freedom of speech, democracy etc, were transferred in a manner that is violative of the apex court rules. As per Dave, several of these cases have been assigned to new benches in which the junior judge from the original bench presided, despite the senior judge being available.
“I have personally come across a number of cases listed before various Hon'ble Benches upon first listing and/or in which notice have been issued, being taken away from those Hon'ble Benches and listed before other Hon'ble Benches. Despite first coram being available the matters are being listed before Hon'ble Benches in which second coram presides.”
As noted by Dave, a handbook published by the Supreme Court in 2017 specifies that a case shall be listed before the junior judge only if the senior judge is not available.
“If first coram is not available on a particular day on account of retirement, the case shall be listed before the Judge constituting the second coram. If second coram is also not available, the case shall not be listed on that day.” (Para 6, Cases, Coram and Listing, Chapter XIII of Handbook on Practice and Procedure and Office Procedure, 2017)
Dave, however, alleged that the prescribed practice was not being followed.
On 29 November, Dave had expressed grief over the fact that a petition by Tamil Nadu's Directorate of Vigilance and Anti-Corruption (DVAC), which was originally listed before a bench headed by Justice Aniruddha Bose, were suddenly moved to a bench led by Justice Bela M Trivedi.
"It is wrong that matters before Justice Aniruddha Bose are being listed here,” Dave was quoted by Bar and Bench as having said.
As per an analysis by Article 14, eight “politically sensitive” cases were moved to Justice Bela M Trivedi over a period of four months, even though as per the rules they ought to remain with the senior judge or a judge hearing a similar case. These include JNU scholar Umar Khalid’s bail plea, and challenges to provisions of the stringent Unlawful Activities Prevention Act (UAPA).
In his letter, Dave urged the Chief Justice, as the Master of the Roster, to look into the transfers immediately.
“You have administrative control over the court, but on the judicial side, “you are the first among the equals." As Master of the Roster you alone have the prerogative to constitute bench and allocate cases to the benches so constituted,” Dave said in his letter to the CJI.
Similarly, in an article published in The New Indian Express, Senior Advocate Kapil Sibal expressed concern over the manner in which “live yet sensitive cases are transferred and shifted to a bench which did not hear the matter earlier.”
He did, however, state that he did not wish to question the right of the Chief Justices of constitutional courts in the exercise of their discretion.
“… but there is an established practice that the bench which issues notice in the matter should hear the matter till fruition unless the judge concerned retires in the meantime or recuses himself.”
The 'Master of Roster' Controversy From 2018
This is not, however, the first time that a controversy pertaining to the listing of cases has erupted in the hallowed portals of the apex court.
Back in January 2018, four Supreme Court judges held a press conference to register their disapproval of the manner in which the apex court was being administered. They also released a letter expressing concerns over the manner in which high-profile cases were being assigned by then Chief Justice of India Dipak Misra to select benches. They had said:
“There have been instances where cases having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this court selectively to the benches "of their preference" without any rational basis for such assignment."
(With inputs from Livelaw, Article14, Bar and Bench and The New Indian Express.)
(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran.)
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