Master of the Roster: As Chief Justice Dipak Misra Faces Motion for his Removal, Shanti Bhushan’s Petition Points to Ten Instances of “Hand-Picking Benches”

The motion to remove Chief Justice Dipak Misra marks the first time in India’s judicial history that an attempt has been made to remove a sitting chief justice of the country. PIB
21 April, 2018

Times are tough for the chief justice of India. On 20 April, 64 members of parliament from seven opposition parties submitted a petition to Venkaiah Naidu, the vice president and chairman of the Rajya Sabha, seeking the removal of Dipak Misra as the chief justice. The move marks the first time in India’s judicial history that an attempt has been made to remove a sitting chief justice of the country. Concurrently, the Supreme Court is presently hearing a petition filed by Shanti Bhushan, a senior advocate and a former union law minister, concerning serious allegations about the allocation of cases by the chief justice and the registry. The petition notes that the manner of allocation clearly reflects “a pattern of favouritism, nepotism, and forum shopping.”

Misra assumed the office of chief justice in late August last year, and within three months, the differences between sections of the bar and the bench became evident, particularly during a hearing in a case concerning corruption allegations against two benches of the Supreme Court. Both benches included Misra. In his order dismissing the case—popularly termed the medical college bribery case—Misra stated that the chief justice “alone is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.” Soon after, differences emerged within members of the bench as well—in January this year, four senior judges of the Supreme Court held an unprecedented press conference to register their concerns about the manner in which the court assigned cases “selectively to ‘benches of their preference’ without any rational basis.”

Shanti Bhushan’s petition is listed for hearing before a bench comprising AK Sikri and Ashok Bhushan, on 27 April. With the petition and the motion for Misra’s removal, the concerns over Misra’s allotment of cases have again come under the spotlight. The petition claims that while listing cases, the chief justice places “matters of general public importance and/or political sensitivity before only certain benches.” Kamini Jaiswal, an advocate in the Supreme Court, said the motion to remove Misra was “necessary.” “Things are moving from bad to worse,” she added. “I have been in the Supreme Court for over 30 years and I have never seen the Supreme Court so low.” The advocate Prashant Bhushan said, “One reason why the impeachment motion is important is because of the serious danger which emerges from the CJI being blackmailed by the government via the medical college bribery case.” He added, “The abuse of power by the CJI as the master of roster poses a serious threat to the democracy as the entire Supreme Court is being controlled by the government.”

In his petition, Shanti Bhushan seeks to allay these fears by requesting directions from the court regarding an adherence to certain rules of procedure while allocating cases. The petition argues that the “master of roster” cannot be an “unguided and unbridled discretionary power, exercised arbitrarily by the Hon’ble Chief Justice of India by hand-picking benches of select Judges or by assigning cases to particular Judges.” It further states that the authority of the chief justice as the “master of roster is not an absolute, arbitrary, singular power” and that it “must necessarily be exercised by him in consultation with the senior judges of the Supreme Court.” The petition also lists a series of cases that it alleges “reflects and establishes the gross abuse of powers.” Ten such cases from the petition, and the allegations relating to them, are listed below:

1) In the medical college bribery cases

In October last year, the Campaign for Judicial Accountability and Reforms, an organisation working on issues of judicial reform, moved the Supreme Court seeking a probe by a special investigation team into a corruption scandal emerging out of a medical college in Lucknow. The corruption allegations levelled in the petition cast an aspersion on the highest offices of the Supreme Court. On 8 November, the counsel for CJAR mentioned the matter before the bench led by Jasti Chelameswar, the senior-most judge after Misra, who listed the case for hearing on 10 November. According to Shanti Bhushan’s petition, “During lunch the petitioner’s counsel was informed that in the light of an order by the Chief Justice,” the case had been transferred to another bench.

On the next hearing, the case was listed before a bench led by AK Sikri. The petition notes, “The same afternoon the matter was suddenly heard by a Constitution Bench headed by the Hon’ble Chief Justice of India and junior judges hand picked by him.” The CJI pronounced the order, which emphasised that the chief justice was the master of the roster, that any order contravening the CJI’s administrative power was null and void, and that the CJAR petition would be heard by a new bench constituted by Misra. The case was then referred to a bench headed by RK Agarwal, and finally dismissed on 1 December with costs of Rs 25 lakh imposed on CJAR.

2) In a case involving a challenge to the appointment of the special director of the Central Bureau of Investigation

On 13 November last year, the judge Navin Sinha recused himself from the bench hearing a petition challenging the appointment of Rakesh Asthana, a Gujarat cadre IPS officer, as the special director of the CBI. Bhushan’s petition notes that on that day, the bench, which was led by Ranjan Gogoi, passed an order stating: “List the matter on Friday i.e. 17th November, 2017 before a bench without Hon’ble Mr Justice Navin Sinha.”

On the next date of hearing, the matter was listed before the judges RK Agarwal and Abhay Manohar Sapre. According to Bhushan’s petition, Gogoi was not sitting with Sinha on 17 November, and accordingly, the case “ought to have been listed before the Bench presided by Hon’bleMr Justice Gogoi.” The petition quotes the Supreme Court’s “Handbook on Practice and Procedure and Office Procedure 2017,” which states: “A case directed not to be listed before a particular Judge constituting the first coram shall be listed before the Judge constituting the second coram in a different composition, ifavailable.”

Bhushan’s petition claims that the listing of the case before Agarwal and Sapre was “in complete contravention of Supreme Court Handbook on Practice and Procedure.” The petition further argues, “The exercise by the concerned Registry officials in this regard was clearly an abuse of discretion and suffered from malice in law besides being arbitrary.”

3) In an appeal in the 2G case

According to Bhushan’s petition, the case was listed for hearing on 6 November last year, but subsequently deleted from the list. It was then listed before the chief justice’s court, but on 13 November, two judges of the bench—AM Khanwilkar and DY Chandrachud—recused themselves from the hearing. The petition states that the case was then listed before the bench presided by Arun Mishra “even though other Benches of senior Hon'ble Judges were available.”

4) In the petitions seeking an investigation into the suspicious death of Judge Loya

Upon being mentioned before the chief justice’s bench on 11 January this year, Bhushan’s petition notes, two petitions seeking an investigation into Loya’s death “were surprisingly ordered to be listed” before the bench led by Arun Mishra on the next day. It is pertinent to note that it is on the day of the Loya hearings that the four senior judges of the Supreme Court had held the press conference, during which Justice Gogoi had informed the media that the four judges had approached the chief justice with concerns about the listing of the Loya petitions.

The case was subsequently listed on 16 January, and then mentioned on 19 January before the chief justice’s bench, and it was ordered that the petitions would be listed before an “appropriate Bench as per roster.” According to Bhushan’s petition, “it does not appear that any other Court Roster was published or if it was at all in existence.” It continues, “PILs were being heard by several courts in the apex court. Yet, on 22nd January 2018 the matter was listed before Court No.1 which heard the matter.”

5) In a case involving the member of parliament and Congress leader Shashi Tharoor

Bhushan’s petition also lists as one of the examples a petition filed by the BJP leader Subramanian Swamy seeking an investigation into the death of Tharoor’s late wife Sunanda Pushkar. The case was listed for hearing on 29 January this year before a bench led by Arun Mishra. According to Bhushan’s petition, on that date, the case was adjourned for arguments on the maintainability of the petition. But on the next date of hearing, Mishra’s bench issued notice to the Delhi Police while “keeping the question of maintainability open.”

6) In the case concerning the story by the news portal The Wire on the assets of Jay Amitbhai Shah

Bhushan’s petition states that this case was “also listed before Court No.1 while several other courts have been authorized to hear criminal matters under the Roster.”

7) In the Aadhaar cases:

The batch of petitions challenging the constitutionality of the Aadhaar programme was initially being heard by a three-judge bench presided by Justice Chelameswar. The bench had referred the case to a constitution bench in August 2015. Subsequently, the former chief justice JS Khehar constituted a five-judge bench to hear the case on 18 July last year, which comprised him, Chelameswar, Chandrachud, SA Bobde and Abdul Nazeer.

The case was then referred to a nine-judge bench on the issue of whether the right to privacy was a fundamental right. This bench, also constituted by Khehar, included the judges Chelameswar, Bobde and Nazeer. Soon after the judgment on the right to privacy, Khehar retired as the chief justice and Dipak Misra assumed office. Bhushan’s petition notes that the Aadhaar bench subsequently “came to be reconstituted and does not comprise of Hon’ble Justice Chelameswar, Hon’ble Justice Bobde and Hon’ble Justice Nazeer.” The five-judge bench presently hearing the Aadhaar cases comprises Misra, Chandrachud, Khanwilkar, Sikri and Ashok Bhushan.

8) In a petition challenging the appointment of BJP Spokesperson Sambit Patra as an independent director of the Oil and Natural Gas Company

According to Bhushan’s petition, the case was listed before a bench comprising RK Aggarwal and AM Sapre on 8 January this year, when “one of the judges recused” himself from the hearing. The petition states that “the matter was thereafter listed before Justice A.K. Sikri and Ashok Bhushan.” The case is presently ongoing.

9) In a case seeking an explanation from the centre regarding the delay in finalising the memorandum of procedure for appointment of judges

On 27 October last year, while hearing a petition filed by a lawyer RP Luthra challenging appointments to the higher judiciary in the absence of a revised memorandum of procedure, a bench comprising UU Lalit and AK Goel sought responses from the central government on the delay in finalising the procedure. Bhushan’s petition states that the case was then listed for its next hearing on 14 November that year. But in a surprise move, the case was listed before a new bench of Justices Misra, Sikri and Amitava Roy, on 8 November. On that date, as noted in Bhushan’s petition, “the three-judge bench headed by CJI recalled the 27 October order.”

10) In a case concerning the right to compensation under the Land Acquisition Act

According to Bhushan’s petition, in 2014, a three-judge bench of the Supreme Court had ruled that a compensation amount in lieu of acquired land would not be treated as paid until it was deposited, and that the failure to deposit such an amount would result in the lapse of the acquisition. In February this year, another three-judge bench led by Arun Mishra held the 2014 judgment to be incorrect, or “per incuriam.” Simultaneously, another three-judge bench headed by Justice Madan Lokur was hearing a similar case on the question of compensation for land acquisition.

Bhushan’s petition states that on 21 February, the bench headed by Lokur listed its case for its next hearing on 7 March. The bench further directed that other benches hearing cases on similar issues of law should defer a hearing until a larger bench rules on the issue of whether a three-judge bench can render a decision passed by another three-judge bench as per incuriam. Bhushan’s petition notes that on “the very next day,” two similar matters were “listed before two different two judge benches of the Supreme Court, headed by Justice Arun Mishra and Justice Goel.” The petition further notes that both Mishra and Goel were “part of the judgment” that held the 2014 judgment as incorrect.

On that date of hearing, both benches headed by Mishra and Goel referred their cases to Chief Justice Dipak Misra, who in turn listed the cases for hearing on 6 March—the date before the scheduled hearing of the case before Justice Lokur. According to Bhushan’s petition, Misra listed the cases “before a 5 judge bench presided by himself” to consider the correctness of all the issues arising out of these cases.