Master Of Roster-Devise A System Without Arbitrariness And Cherry Picking Of Cases By CJI:Dushyant Dave Appeals To SC [With Full Courtroom Exchange]

The hearing in the PIL instituted by Senior Counsel and Former Union Law Minister Shanti Bhushan seeking clarification on the power of the Chief Justice Of India as the master of the roster commenced, on Friday, with Senior Advocate Dushyant Dave submitting, before the Supreme Court bench of Justices A. K. Sikri and Ashok Bhushan, “There is a contradistinction in the Constitution...something that has lost out sight for a long time...my respectful submission is that the traditional principle of the CJI being the master of the roster is not present in the Constitution...”In so far as Article 145 lays down that the “Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court...”, Mr. Dave suggested, “the ‘Supreme Court’ is not the CJI alone but the full court...”. In the same context, he indicated Article 124 on the establishment and constitution of the Supreme Court.“Please see the contradistinction in Article 130 (empowering the CJI to decide the seat of the apex court) where the Constitution wanted to confer power exclusively on the CJI, it was expressly done...”, he advanced.Continuing in the same thread, he also mentioned Article 146 providing that the Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct.“Under Article 145, rules have been framed (Supreme Court Rules of 2013) which do not confer express or implied power on the CJI for determining the roster or the listing of cases...”, he submitted.Indicating Order 3 Rule 7 of the Supreme Court Rules of 2013, in so far as the Rule stipulates ‘Subject to general or special orders of Chief Justice, the Registrar shall publish such other lists as may be directed; list matters as may be directed and in such order as may be’, Mr. Dave advanced, “there is a limited scope for the CJI to interfere...”.When Justice Sikri remarked that the provision confers power on the CJI, the Senior Counsel advanced,"Subject to’ should be read as a Proviso...it cannot overrule the substantive provision...it does not empower the CJI to fix the roster and list before specific benches all the matters...”. Mr. Dave also indicated Rule 8(ii) of Order 3 in the same context.Further, in the light of Rules 1 and 5 of Order 6, Justice Bhushan observed, “power has been given to the CJI to nominate benches...that would be wide enough (to include determination of roster and assignment of matters)...if there is no such power, then the Supreme Court would be unworkable...”. “I bow down...but Your Lordships have to decide if the Constitution has conferred this power on the CJI or the full Court...”, responded Mr. Dave.Referring to the Government of India (Allocation of Business) Rules, he advanced, “there a large number of matters which go to Cabinet and in respect of which the Prime Minister has no power...this is a necessary system of checks and balances...”“Your Lordships may sit at the end of each term and decide the roster and make amendments to the Rules...every judge may communicate what subjects they are interested in...just because this may seem cumbersome, it cannot be wished away”, continued Mr. Dave. In response to a query by Justice Bhushan, the Senior Counsel clarified, “if it is not feasible for the full court to take part in accordance with Article 145, then in the alternative, the Collegium may decide”.Relying on the landmark judgment in S. P. Gupta (1981), he advanced, “the ‘CJI’ has been understood to mean to collegium”.He quoted Justice P. N. Bhagwati’s observation therefrom- “...We are all human beings with our own likes and dislikes, our own predilections and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations...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...”“Constitution of benches and listing of matters is a sensitive issue today...this is a responsible petition by a responsible petitioner and not directed against any one individual...if one day, some CJI decides he shall hear all matters himself (“and gives only chamber matters to brother judges”, added Justice Sikri on a lighter note), would that be legal?”, submitted Mr. Dave.“If roster is decided in January, then at least till May, matters should be listed in accordance thereto by the computer with no human interference...”, he continued.Thereupon, Mr. Dave brought out the discrepancies between the 2013 Rules and the Supreme Court Handbook on Practice and Procedure.He...

Master Of Roster-Devise A System Without Arbitrariness And Cherry Picking Of Cases By CJI:Dushyant Dave Appeals To SC [With Full Courtroom Exchange]

Mehal Jain

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