Master Of Roster Or Judicial Superiority?

The system of ‘Master of Roster’ is prevalent in Supreme Court and High Courts for bench allocation. As per the system of ‘Master of Roster’, the Chief Justice of India or Chief Justice of a High Court [Hereinafter ‘Chief Justice’] on administrative side allocates the case categories to different benches. Case categorization under this process means classification of cases according to their subject-matters, for instance, tax matters, bail matters, service matters, commercial matters, etc. The purpose of this system of categorization is smooth functioning of constitutional courts so that the Chief Justice may allocate subject-matters as per the prowess of the benches.

However, it is unfrotunate to observe that the Chief Justices of a few High Courts, in the name of bench allocation, are encroaching upon the pecuniary jurisdiction of other colleague judges. For example, roster published by the Chief Justice of Punjab & Haryana High Courtdated: 04.01.2023 categorically mentioned that:

• Commercial Appellate division matters (Rs. 500 Crore or above) shall be listed only before the Chief Justice’s court and Commercial Appellate division matters where the amount involved is less than Rs. 500 Crore shall be listed before other division benches.
• The roster also says arbitration cases under Section 11 of Arbitration & Conciliation Act, 1996 wherein the claim value is Rs. 5 Crore & above shall be listed before Chief Justice when he will sit singly and the arbitration cases under Section 11 of Arbitration & Conciliation Act, 1996 wherein the claim value is less than Rs. 5 Crore shall be listed before other single judge benches.

Also, the roster published by the Chief Justice of Delhi High Court dated: 25.02.2022 categorically mentioned that:

• ‘Commercial Appellate Division’ has been constituted with five Division Benches, namely, DB-I, DB-II, DB-IV, DB-V and DB-VI. Hon’ble Judges who are members of said Division Benches, as per the present roster, have been nominated to be the Judges of the Commercial Appellate Division.

The matters of the Commercial Appellate Division involving commercial disputes of over Rs.100 Crores shall be listed before DB-I.

DB-I (Division Bench-I) in every High Court across the nation is nothing but the Chief Justice’s Court. Therefore, it is quite evident from the above-mentioned rosters that a classification has been made by the Chief Justices between their benches and other benches of same strength on the basis of amount of money involved in those matters. It can be inferred from above-mentioned rosters that the Chief Justice has assumed that he has more power than other colleague judges on judicial side by making this classification. As per the Constitution of India, every High Court judge has unlimited pecuniary jurisdiction but by the aforementioned rosters, the Chief Justice has curtailed the pecuniary jurisdiction of colleague judges which is blatantly in violation of the Constitution of India and also, impacting the independence of the judiciary.

It is pertinent to clarify that the Chief Justice on the judicial side is the first among equals, and only for the purpose of administrative work, he enjoys the extraordinary power of bench allocation and is called ‘Master of Roster’, but for the judicial purposes, the Chief Justice has the same power as of the other colleague Judges. The phrase ‘among equals’ is generally related to the judicial function designed to emphasise the fact that voices of the members of a particular bench, which may include ‘Chief Justice’, are given equal weightage and that in deciding cases, the opinion of the ‘Chief Justice’ also carries the same weight and is no different from those of other members of the bench. The word ‘first’ in the aforesaid expression signifies only the fact that the ‘Chief Justice’ is the senior most judge of the court and nothing else.

For the adjudication purposes, any court across the globe has three jurisdictions i.e., subject-matter, pecuniary and territorial jurisdiction. A court can only adjudicate a matter if it is within its aforementioned jurisdictions. The Chief Justice as a Master of Roster cannot decide the pecuniary or territorial jurisdiction of other colleague judges. This power is given only for the purpose of subject-matter categorization.

Pecuniary jurisdiction of every High Court and Supreme Court judge is unlimited and no one except parliament can tinker with that jurisdiction. For instance, the Chief Justice cannot dictate that a matter of a particular monetary value shall be listed before his bench and other benches of the same strength cannot deal with that matter despite having the same strength and same subject matter category in their roster.

No doubt, he can make a roster where he can say that commercial, tax matters, etc. shall be heard by so & so benches but he cannot bifurcate the jurisdiction of those benches on the basis of monetary value involved in those matters. By doing so, he will be usurping the jurisdiction of other colleague judges and will be undermining the authority of the High Court/Supreme Court and will be declaring other benches as subordinate to his own bench, which is not permissible under the present legal regime. The power of Master of Roster cannot be used in such a manner as to assert any superior authority by the Chief Justice. But the Chief Justices of Delhi and Punjab & Haryana High Court, by ousting the jurisdiction of other judges in commercial matters where money involved is more than 100 crore or 500 crores respectively, are asserting superior authority over other colleague judges which is impermissible in the current legal regime.

Commercial Courts Act, 2015 is the only statute which has incorporated the power of the Chief Justice to allocate benches for the purpose of commercial disputes. As the above-mentioned rosters are related to commercial disputes, it is necessary to discuss the relevant provisions of Commercial Courts Act, 2015. Sections 4 & 5 of the Act empower a Chief Justice of the High Court to constitute commercial division and commercial appellate division in that High Court. It also empowers the Chief Justice to nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of Commercial Division and Commercial Appellate Division. The relevant provisions of Commercial Courts Act, 2015 are reproduced here and which read as follows:

Section-4(2): The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Division.

Section-5(2): The Chief Justice of the High Court shall nominate such Judges of the High Court who have experience in dealing with commercial disputes to be Judges of the Commercial Appellate Division.

The provisions, nowhere by any stretch of imagination, provide that the Chief Justice has power to decide the pecuniary jurisdiction of the other colleague judges. The power given under Sections 4(2) & 5(2) of the Act is pari materia to conventional administrative power of Chief Justice as Master of Roster. The power enshrined under Sections 4(2) & 5(2) of the Act only empowers a Chief Justice to allocate the commercial matters to those benches which are verse in dealing with commercial disputes. Here also, the Chief Justice has to see the prowess of the benches. “Experience in dealing with commercial disputes” means experience in that particular area irrespective of the monetary value involved. But the Chief Justices of Delhi and Punjab & Haryana High Court vide above-mentioned rosters considered themselves superior over other colleague judges and were/are dealing with the matters which involve money more than 100 or 500 crore respectively. By these rosters, the Chief Justices created a jurisdiction which is completely alien to the Commercial Court Act, 2015 or the traditional system of Master of Roster. It appears that the sole purpose of such rosters is either to assert superior authority over other colleague judges or to imply that Chief Justices have more expertise in commercial matters involving a larger amount of money, than other colleague judges of their respective High Courts.

In the case of Asok Pandey Vs. Supreme Court of India (2018) 5 SCC SCALE 481 petitioner sought direction from the apex court that a three-judge bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior most colleagues alone while the Constitutional Bench should consist of five senior most judges. While dismissing the writ petition, the Supreme Court held that:

“There is no constitutional foundation on the basis of which such a suggestion can be accepted. For one thing, as we have noticed earlier, this would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. Moreover, the petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practise at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.”

Supreme Court categorically held that every judge appointed under Article 124 of the Constitution of India is invested with the equal duty of adjudicating cases that come to the Court. High Court Judges are appointed under Article 217 of the Constitution of India. They are also entrusted with equal power and duty to adjudicate the case which comes to the High Court. The Chief Justice is equal to all other judges of a High Court. But the Chief Justices of Delhi and Punjab & Haryana High Court vide above mentioned rosters have considered themselves more capable and competent than other judges of their respective High Courts in deciding the commercial disputes. Just for the sake of clarity, we may consider that Chief Justices might be right while considering themselves more capable but then this may cast a shadow on the competence and ability of other judges of their respective High Courts. The rosters colourably declare that other judges are less competent than the Chief Justice of the respective High Courts. This act of Chief Justices is undermining the independence of judiciary and it is also an encroachment in the parliamentary domain as only the Parliament can tinker with the pecuniary jurisdiction of a High Court Judge.

Though Hon’ble Apex Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC 1 held that the Chief Justice of the High Court is the Master of Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the benches so constituted. It was also held that judges cannot “pick and choose” any case pending in the High Court and assign the same to himself for disposal without appropriate orders of the Chief Justice.

But it is pertinent to discuss here that the Supreme Court did not take note of the situations where the Chief Justice himself would “pick and choose” cases, and encroach upon the jurisdiction of the colleague judges and will allot and dispose of those cases on some extraneous reasons. The Hon’ble Supreme Court did not take note of the fact that the Chief Justice is also a human being and due to his own predilections and prejudices, the roster made by him sometimes may be influenced by extraneous or irrelevant considerations. The Hon’ble Apex Court in SP Gupta Vs. Union of India (1981) Supp. SC 87 held that-

“It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual...”

And on the basis of this reasoning, the system of Master of Roster was challenged in Shanti Bhushan Vs Supreme Court of India (CWP No. 789/2018) for the direction that the roster should be made by the collegium but the Hon’ble Apex Court deviated from its own reasoning given in SP Gupta (supra). While dismissing the petition, the Supreme Court upheld the validity of the prevailing system of the Master of Roster.

Though the purpose of the system of Master of Roster is to maintain judicial discipline and decorum, we have seen many instances where the Master has not remained administrative head rather tried to become an authoritarian judicial head, which is not the constitutional mandate. This practice resulted in the unchecked allocation of cases, which minimizes the trust that the public repose in the Master of Roster. We live in a democratic set-up where everyone, howsoever high, is accountable for the act done by him. However, the Master of the roster is unregulated and requires more transparency and accountability for any act done by him. Also, there is no grievance redressal mechanism against the doubtful working of Master of Roster. The office of Master of Roster is sometimes inclined more towards the rule of man than the rule of law. Discretion given to an individual is always antithetical to the rule of law. There is no check and balance in the present system of Master of Roster. The authors strongly feel that it is high time that Parliament stepped into this domain and either give the power of Master of Roster to the collegium or enact a new method where cases can be allocated on the objective considerations rather than predilections and prejudices of an individual.

The authors clarify that the objective of this article is to discuss the legal aspect of Master of Roster and not to make any allegation on any individual.

Dr. Amrendra Kumar Ajit is an Assistant Professor, Law Centre-I, Faculty of Law, University of Delhi.Nishant Khatri is a Research Fellow and Visiting Faculty at Faculty of Law, University of Delhi. Views are personal.