Rules For Listing Violated In Many Cases In Supreme Court : Prashant Bhushan

Speaking during the seminar hosted by Campaign for Judicial Accountability and Reforms (CJAR) at the Indian Society of International Law, New Delhi, Advocate-on-Record and CJAR Convener Prashant Bhushan recently voiced an opinion that even though Master of Roster power is stated to be subject to certain rules which even Chief Justice of India cannot violate, the same are being routinely violated in listing and allocation of cases.

Giving example of withdrawal of the cases challenging UAPA provisions from before the top Court, Bhushan said, "one of the rules is that if a case has been heard by a particular bench, then the next time it will be listed before the Senior judge who has heard that case. But we are seeing that this rule has also been violated in several cases, especially in some of these bail cases or liberty cases involving challenge to the constitutional validity of the bail provision in UAPA etc."

He added that all 10 cases, which were listed before "other senior judges of the Supreme Court", came to be somehow listed before "a very junior judge, who is almost the juniormost judge heading benches in the Supreme Court, whose view about liberty was well-known to everybody". Focusing on the withdrawal, the veteran lawyer further commented that the cases had to be withdrawn by the petitioners as they knew what the outcome before the particular judge would be and there was no "confidence" that liberty or bail would be granted.

Notably, he asserted during his speech that the issue of listing of the UAPA cases being in violation of the rules was raised, however, they continued to remain before the particular Judge, in violation of the rules, with the "consent of the Chief Justice". He also recalled the incident when petitions filed against the Central Government for delaying judges' appointment were not listed before the Bench of retired Justice Sanjay Kishan Kaul, just prior to his retirement, despite a specific direction on the previous date of hearing. 

Bhushan was addressing a gathering of former judges of Supreme Court and High Courts, senior advocates and members of society assembled for a seminar on  "Supreme Court Judicial Administration & Management- Issues & Concerns".

Course correction by Supreme Court: A hope

Bhushan began by stating that the idea behind holding the seminar was rooted in concerns regarding what was happening in the judiciary, particularly the Supreme Court. Explaining said concerns, he said, there were judgments coming out which were letting down either fundamental rights, or democracy and or the Constitution.

"We felt that at the heart of all this was the issue of listing and allocation as well as the Court's attitude towards liberty".

Acknowledging the recent "very good" decisions in the Electoral Bonds case and the Chandigarh Mayor Elections case, Bhushan reflected that they have rekindled hope of Supreme Court embarking "on a correction of course".

Hoping that the trend continues, he said "one swallow doesn't make a summer" and the decisions should be viewed with a word of caution.  

"Because the Court has often embarked on a venture of legitimizing the arbitrary actions of the State, so therefore he says that there should be a word of caution about these 2 recent judgments".

Bhushan further mentioned to the audience something said to him in a letter by Indian jurist & veteran lawyer Fali Nariman, who recently passed away. To quote,

"He wrote a letter to me...saying that he hopes that the Supreme Court will correct course on the what he called the no-bail provision in some of our recently enacted laws...he was referring obviously to UAPA and PMLA which have a rule of bail which is very different from the normal rule of bail...which he obviously felt was inconsistent with Article 21 rights".

Abuse of Master of Roster power

Recalling the 2018 conference by 4 judges of the top Court, complaining about "misuse of power" by the then Chief Justice (being the Master of Roster), he claimed that it was not merely politically "sensitive cases" which were being assigned in a particular manner, but also cases involving judges themselves.

"We have heard Justice Lokur pointing out that a lot of cases were going to the judge sitting in court No.12 at that time...he unfortunately also became kind of the man to go when cases personally involving the then Chief Justices were also there.... I can name him - Justice Arun Mishra, ".

He pointed to the presence of certain judges on Benches that heard cases where "they were clearly involved". In this regard, reference was made to the Medical Colleges Scam case, in which "the then Chief Justice not only sat in the Bench that he constituted but he also had Justice Arun Mishra sit with him" and to the sexual harassment case against then Chief Justice Ranjan Gogoi, who adopted a similar course in the Saturday sitting.

Bhushan also called into question the impeachment proceedings against then CJI Dipak Misra, reminding that a plea against Vice President's rejection of the motion was listed before a Bench constituted by CJI Misra only and rejected.

"So that shows you how this power of Master of Roster can be abused so arbitrarily and sometimes in their own cause...often for the benefit of the government or the State and sometimes their own cause...by various Chief Justices if they choose to do so...".

Dealing with the topic, he also lamented that certain Judges, while they were not the Chief Justice, took the stance that there should be a Committee to decide the Roster. However, when they themselves became the Chief Justice, they wanted to keep the power exclusively to themselves.

Recommendation: A Collegium-like system for Roster

Reiterating that Master of Roster issue is not laid down in any law, Bhushan reminisced how the petition filed by his father Sr Adv Shanti Bhushan, seeking regulation of powers of the CJI in constituting benches and allocating cases, was dismissed.

"It is just a matter of convention that the Chief Justice is the Master of Roster and he decides which Bench should hear matters, when they should hear matters".

It was highlighted that Sr Adv Shanti Bhushan's petition had prayed for the Master of Roster power to be exercised by 5 senior-most judges of the Court (like in collegium for appointment of judges), instead of just one, as in legal and judicial circles, the proclivity of a judge to decide cases in a particular manner is well known. In addition, the Roster was sought to be decided based on the subject matter.

"If you have only the Chief Justice deciding the Roster, even that power can be misused because suppose there's a Chief Justice who at the instance of the government wants to deny bail to all these arbitrary arrests that we are seeing taking place, he can easily constitute a Roster for bail which will be of judges who say "JAIL, NOT BAIL"."

Adverting to a possibility of connivance between advocates and the Registry for listing of particular cases before particular Benches, Bhushan added that a second prayer in his father's petition was that if there are 3 Benches for a particular Roster (say, criminal), the matters should be allocated amongst the 3 Benches via computer. He reasoned that under the present system, the allocation depends upon the registration number (first in sequence would go to 1st Bench, second to 2nd Bench, third to 3rd Bench, and then cycle would be repeated starting with 1st Bench) which can be manipulated with the aid of the Registry.

He recapitulated the Court's observation in Sr Adv Shanti Bhushan's case that there are rules which even the CJI as Master of Roster cannot violate. This observation was called into question by alleging that there is a recent trend of rules being violated even with the consent of the CJI.

Listing, mentioning of urgent cases: A problem

Bhushan also flagged the issue with listing and mentioning of cases. He said that in today's times, cases may get listed after filing and clearing defects within 10 days or so. But, after notice is issued, say returnable for 4 weeks, the case may remain pending for years.

"There is no clear rule or system by which you ensure that it does get listed after 4 [weeks]...what do you do? sometimes if the Senior judge has retired after issuing notice, you don't know where to mention it...it says that you have to mention it only before the Chief Justice...if there is a clear quorum with the Senior Judge being there, then yes you can mention it before that particular Bench...but otherwise you have to mention it before the Chief Justice...the Chief Justice is often sitting in a Constitution Bench and he hears no mentioning while he's sitting in a Constitution Bench...so sometimes fresh urgent matters just cannot be listed...I find this quite amazing that there are several days sequentially when the Chief Justice is in a Constitution Bench and the matter just can't be listed".

Way forward & concluding remarks

Bhushan clarified that his stance on the matter was not to have everything computerized. Instead, his suggestion is that there shall be more, better fine-grained rules for deciding priority in listing of matters to avoid arbitrariness and to minimize discretion, as human element cannot be completely done away with.

Lastly, underlining the importance of accountability for violation of rules, he appreciated certain Judges for hauling up the Registry on occasions for not listing cases in terms of judicial orders.

The video of the event can be watched here.

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