CJI is the boss, says Supreme Court for the third time in eight months

For the third time in eight months, the Supreme Court on Friday reiterated the ‘absolute authority’ of the Chief Justice of India to allocate cases and fix benches.

A two-judge bench while dismissing the petition filed by the former law minister Shanti Bhushan declared that the CJI alone was the ‘Master of the Roster’. The senior counsel had contended in the petition that the Chief Justice should exercise his power to allocate the cases in consultation with the four other judges in the collegium.

In November, 2017 a five-judge bench headed by the Chief Justice himself had declared his absolute powers on the administrative side for the first time. In April , 2018 a three-judge bench headed again by Dipak Misra himself, had again asserted that the CJI is the ‘boss’.

The Supreme Court’s decision, however, drew considerable criticism from several lawyers.

“Sad that SC today ruled that CJI can unilaterally decide allocation of cases,” tweeted Prashant Bhushan, adding, Four judges pointed out in PC that CJI was abusing his powers in allotting sensitive cases like Loya's, medical college scam etc. Unfortunate that SC has not insulated itself from abuse of CJI's powers”.

While all judges of the Supreme Court are equal on the judicial side while adjudicating cases, a section of legal experts believe that allowing unfettered power to the CJI on the administrative side is ‘problematic’.

The Chief Justice of India decides when a case may be listed for hearing, and who are the judges who would hear it. “The power to decide when a case will be heard confers a power to delay its hearing,” pointed out a senior lawyer. “And the power to decide who would be the judges to hear the case confers the power to control the outcome,” he added.

The US Supreme Court has nine judges and all of them sit together to hear cases. Similarly, UK’s Supreme Court has 12 judges and mostly hear cases in panels of five judges or more.

But the Supreme Court of India, which has a sanctioned strength of 31 judges, sit in benches of two.

The Chief Justice of the US Supreme Court has thus no choice of deciding which of the judges would hear a case. In the UK also, the choice is restricted. But in India the CJI enjoys enormous discretion in the matter, giving rise to the possibility of the CJI exercising it arbitrarily.

The petition and the order

While the petition maintained that the collective opinion of the members of the collegium or the five senior-most judges of the court was a better option, the two judges differed and felt that CJI could not be equated with the collegium.

Although the Constitution is silent on the role of the Chief Justice as 'master of roster' the convention of the CJI allocating cases and fixing benches is a healthy practice to maintain the discipline and decorum of the court," said Justice AK Sikri.

Justice Ashok Bhushan in a concurring but separate judgement said that it is difficult to accept the interpretation that the CJI means entire collegium. Such an interpretation would make day to day functioning difficult.