There's A Perception Now That If Case Is Listed Before Particular Bench, Result Is Going To Be This : Justice Madan B Lokur

At the seminar hosted today by Campaign for Judicial Accountability and Reforms (CJAR) at ISIL, Delhi, retired Supreme Court Justice Madan B Lokur spoke strongly against the opacity in the Master of Roster system and emphasized a need to remove arbitrariness from the process of listing.

"Today, the perception is that when the case goes before the particular bench, this is going to be the result," Justice Lokur said agreeing with a similar view expressed by the previous speaker ie former SC Justice Kurian Joseph.

In this context, while 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" at the Indian Society of International Law, New Delhi, Justice Lokur referred to Umar Khalid withdrawing his bail application from the Supreme Court.

"You have had the case of Umar Khalid asking for bail, which has not been listed for a long time. There have been 13 adjournments. Ultimately, the lawyer said that we wanted to withdraw the case because they knew what the result was going to be. They knew the fate of that case", he said.

Adding that such issues are affecting the quality of justice, the Judge remarked "Once you hand it (listing exercise) over to the computer, the question of arbitrariness won't arise".

The seminar, organized by CJAR, was moderated by Alok Prasanna, co-founder of Vidhi Centre for Legal Policy.

One may recall, Justice Lokur became a judge of the Supreme Court of India on June 4, 2012 and demitted office on December 31, 2018. He was Chief Justice of the Gauhati High Court and the Andhra Pradesh High Court before being elevated to the top Court. In August 2019, he was sworn in as judge of the Supreme Court of Fiji, the first time an Indian judge was appointed as judge of the Apex Court of another country. Three years later, in 2022, he was re-appointed for a 3-year term.

Today, during the seminar, he spoke of the problem of listing cases saying it was not new, especially insofar as the Supreme Court was concerned. However, he was glad that it is being talked about as the stakes are "much higher".

He recalled the times when he was an Advocate at the Apex Court and the lawyers would assemble in the Chief Justice's Court to apprise a member from the Registry that they wanted their matter to be listed on a particular date. "We used to call it fish market because everybody was trying to get that date"

The judge further reminisced that Chief Justice Bhagwati (as he then was) had introduced the system of 'Listing Proforma', which entailed two important aspects: first, lawyers would mention the names of Judges before whom the matter was last listed, and second, they would mention the question of law involved and/or if any similar matter was also pending before the Court.

He explained that this system would ensure continuity, as matters went to Judges who had already heard it, or were dealing with connected issues. If for some reason one judge constituting the Bench would become unavailable (say, due to retirement), the new Bench would atleast include the other Judge who was sitting on the matter/issue.

"That was very very important...Now that, I am afraid is not happening now...Bench may change...there will be Justice A and Justice B and next time the case might be listed before Justice C and Justice D, which did not happen when the listing proforma system was there", the Judge lamented.

He opined that even in earlier times, there were perceptions of particular Judges being pro-tenant, pro-labour, etc. and lawyers would try to get their matters listed before such Benches. However, the same was not talked about because one trusted the Judges to give decision in accordance with law. The bias may be there, but one would be satisfied with the decision.

Speaking on the Master of Roster business, Justice Lokur recalled Delhi High Court's former Justice Rajinder Sachar, who wrote in his autobiography about the taking away of the 1984 anti-Sikh riots case from his Board and listing of the same before the then Chief Justice. "During the course of hearing, it appeared that Justice Sachar, who was a great civil rights activist, was taking a particular view which was not helpful to the government...this was sometime in December...After the Court vacations were over, in January...Justice Sachar found that the case had been taken away from his Board. He took it up with the Chief Justice, but nothing happened...That was as far as I know the first documented case of a Chief Justice exercising the power of Master of Roster to list a case before a particular Bench or to take it out of a particular Bench so that an order which the Chief Justice did not want could not be passed"

Eventually, Justice Lokur summarized the listing issue as follows: when a matter is to be listed, and, where it is to be listed. Implicitly referring to the Supreme Court's urgent listing of journalist Arnab Goswami's bail matter and the State's petition against the release of  Professor GN Saibaba cases, he said,

"You would have a situation where somebody, a journalist, wants bail, the case is listed the same day maybe in the evening...somebody has been granted bail, the prosecution says grant of bail by the High Court is wrong...so a Special Bench sits on a Saturday and stays that order, which is very very unusual, so that the person does not come out of jail. Why should that happen?"

He contrasted these matters with the demonetization case, Article 370 case, the Electoral Bonds case and Umar Khalid's bail case, which were not listed for several years. As a solution, it was suggested that there should be discussions on issues, passing on the message so that corrective steps are taken.

Live updates from the event can be read here.

The event is live-streamed here.