Whether the master of roster must be deemed to include five senior-most judges of the

Supreme Court?
In terms of judicial power, the word of any of the judges of the SC carries the same weight as
that of the CJI. He is thus merely “first among equals.”1

The Supreme Court Rules state that the Registrar must prepare a roster under the instructions
of the CJI.2 It also provides the mandate to be followed for reference of a case to a higher
bench.3 It says that reference of a case by a lower bench to higher bench must be routed
through the CJI who will decide whether there is need for the said reference. Neither of these
provisions explicitly mention the role of the Chief Justice as sole determinant of the roster.

On paper, the Chief Justice ought to follow the court rules and not exercise her/his power
“arbitrarily or in a mala fide manner or for extraneous considerations.” 4 However, this is not
always the case.

Restricting this intervention to the hands of one human being has ensured smooth functioning
but at the same time this unfettered power derived from undefined conventions has created
problems. A careful reading of the provisions though, makes it clear that the CJI has
unfettered power over the roster. However, the Registrar while preparing the roster, is
required to do so on the advice of the CJI. 5 The Chief Justices have, on several instances,
misused their power as Master of the Roster to appoint cases to certain judges to get a
favorable order for one particular side.

In the case of Kishore Samrite v. State of Uttar Pradesh,6 a criminal writ petition in the nature
of habeas corpus was filed against, among others, Rahul Gandhi. There was a separate case
filed against him accusing him of rape of a young woman in Amethi. The petition was filed to
produce the accused to ensure he does not interfere with the investigation. A writ petition of
such a nature under Article 226 of the Constitution has to be heard by a Division Bench. 7 The
Chief Justice of the HC clearly deviated from the rule to place the writ as a private custody

1
Campaign for Judicial Accountability and Reforms v. Union of India and Ors., (2018) 1 SCC 589 (India), ¶6.
2
Supreme Court Rules, 2013, Gazette of India, section III(1), Chapter VI (May 29, 2014).
3
Supreme Court Rules, 2013, Gazette of India, section III(1), Order 6, Rule 2, (May 29, 2014).
4
Justice GC Bhakuria, Master of Roster – Constitutional Limitation and way forward, LIVE LAW, (January 15,
2018) http://www.livelaw.in/master-of-roster-constitutional-limitation-way-forward/#_ftn3
5
Supreme Court of India, Handbook on Practice and Procedure and Office Procedure, 2017, Rule 29,
http://supremecourtofindia.nic.in/practice-and-procedure (last visited Apr 1, 2019).
6
Kishore Samrite v. State of Uttar Pradesh and Ors, (2013) 2 SCC 398 (India).
7
Allahabad High Court Rules, 1952, Chapter 21, Rule 1.
habeas corpus in front of a Single Bench which eventually slapped a hefty fine on the
Petitioners for ‘political mudslinging’ on a politician of repute.8

In a recent order passed in the case of CJAR v. Union of India,9 the SC relied on Prakash
Chand10 and the aforementioned rules to declare that the CJI had the sole authority to decide
the roster for cases in the SC. This order was passed by the CJI to annul a Division Bench
order deciding the roster for this case. The matter was taken up and heard by the CJI in spite
of the fact that he was amongst the people against whom allegations were levelled in the
petition. This was a strong rejection of the principle of nemo judex in causa sua. The CJI was
aware of the allegations; in his defence, he claimed that it was improper to accuse the CJI in
his own court and it amounted to contempt. He further went on to say that only the President
of India can be approached with a complaint against the CJI.11

Giving absolute power to one individual is highly problematic as it creates possibility of not
only mishandling but outright abuse of power. This is especially true when such a power is ex
officio vested in someone holding as strong a constitutional post as that of the CJI. In almost
72 years of independence of the nation, the CJI has not been impeached even once. As can be
made out from recent judicial trends, the CJI has no incentive to change this system of
absolute power conferment. Moreover, a legislative order passed in this regard would be
struck down for interfering with the realm of the judiciary and therefore being violative of the
basic structure doctrine of judicial independence. 12 Clause (4) of Article 145 additionally lays
emphasis on transparency.13

Since the CJI has unfettered power over deciding the roster, he is also capable of misusing
this power. Regarding the human nature of judges, Justice Felix Frankfurter has famously
said that, “Judges are men, not disembodied spirits. Of course, a judge is not free from
preferences, or, if you will, biases.”14

8
KUSH KALRA & LUV KALRA, BE YOUR OWN LAYER – BOOK FOR LAYMAN (1st ed. 2013).
9
Campaign for Judicial Accountability and Reforms v. Union of India and Ors., (2018) 1 SCC 589 (India).
10
State of Rajasthan v. Prakash Chand & Ors, AIR 1998 SC 1344 (India).

11
Mehal Jain, Unprecedented Drama At SC: SC Annuls Two Judge Bench‟s Order On Medical College Scam
Matters, LIVE LAW (Nov. 10, 2017), http://www.livelaw.in/unprecedented-drama-sc-sc-annuls-two-judge-
benchs-order-medical-college-scam-matter/.
12
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, AIR 1973 SC 1461 (India).
13
V.N. SHUKLA, CONSTITUTION OF INDIA 568 (12th ed. 2016) [hereinafter Shukla].
14
Justice Felix Frankfurter, Some Observations on the Nature of Judicial Process of Supreme Court Litigation,
98 PROC. AM. PHIL. SOC‘Y. 233 (1954).
Former Law Minister Kapil Sibal says that there is “no such thing as absolute power and
absolute discretion… if you function under the Constitution. Even if there is some element
of discretion, there must be some norms on how it is to be exercised”.15

Justice Chelameswar, during a public discussion, said allocation of cases, if not made
transparent, would lead to suspicion. “And suspicion is detrimental to the institution,”,
“Seniority in terms of appointment has no bearing on which cases a judge should hear,”
the judgment said.

“To suggest that one judge is more capable of deciding particular cases or that certain
categories of cases should be assigned only to the senior-most among the judges of the
Supreme Court has no foundation in principle or precedent. To hold

otherwise would be to cast a reflection on the competence and ability of other judges to
deal with cases assigned to them by the Chief Justice,” the judgment said.

It said the Chief Justice of India is only “the first among equals” as a judge, but is sui
generis (one of his kind) in other capacities.16

In Nixon M. Joseph v. U.O.I.17 JUSTICE K.N. KURUP has expressed a firm opinion to
maintain the dignity and independence of the judiciary as well as public confidence in the
judiciary, it is necessary that a judge should not allow his judicial position to be compromised
at any cost. Justice must not only be done but seem to be done. Justice Kurup has made
following remarks:

“The general public reposing absolute faith in the judiciary, see in it, justifiably an
institution, that can rein in, if not eliminate, the rapacity, nepotism and corruption,
especially at high places which have come to be associated with governance. The judiciary
should continue to merit the exalted position it occupies in the mind and hearts of the
people as the “saviour of democracy”. It cannot be said that the one necessary condition
for this is its independence. Independence in the sense free from the executive, meaning
the bureaucracy and politicians interference and influence of every type. And fundamental

15
Editorial, “Supreme Court crisis: At the heart of the dispute is CJI’s role as ‘master of roster’ “ published in
Indian Express, January 21, 2018 10:58:02 am Written by Kaunain Sheriff M, Ananthakrishnan G, Liz Mathew,
Manoj CG and Ravish Tiwari
16

Editorial, “CJI’s prerogative to allot cases says Supreme Court”, published in The Hindu on 12th April 2018
written by Krishnadas Rajgopal
17
AIR 1998 KER 385
to freedom from such influence and pressures on the judiciary is to eschew active politics
and acceptance of positions by judges after retirement.”

“Master of Roster” cannot be unguided and have unbridled discretionary power, exercised
arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to
particular judges.

The dictum "Nemo judex in sua causa" broadly governs the rule against such bias which
translates as “no person shall be a judge in his/her own case”, is widely considered a pre-
requisite to a reliable, trustworthy, upright and unbiased judicial system. The object behind
this very principle is that the justice should not only be done, but should also seem to be
done.

For instance, Justice CS Karnan, a sitting High Court Judge, had put allegations of the caste-
based bias on the Apex Court. To canvass some of these biases, at the heart of the dispute is
the recent case of Kamini Jaiswal v. Union of India118, where the role of the CJI as the
‘Master of Roster’, with a prerogative to constitute benches of the apex court and allocate
cases has raised a lot of questions and at multiple levels on the institution itself. In this case,
though there were doubts about the possible involvement of the CJI himself in a case, the
matter was assigned to a Bench by the CJI overruling the decision of allotment of the case,
taken by another Bench. This gave the impression that the principle of nemo judex in causa
sua (no one shall be a judge in one’s own cause) did not apply to the highest Court of the
land.

To add on, the controversial press conference by the four senior most judges of the Supreme
Court questioned the manner in which power has been concentrated in the office of the Chief
Justice which raises some serious challenges for constitutionalism and the rule of law.

The three-judge bench also averred that even when there is an allegation against the CJI, it is
he who has to assign the case to a bench as considered appropriate by him. This has not only
been settled by the Constitution Bench on 10th November but also in the matter of Dr
D.C.Saxena v CJI19 in which the bench held that “It is contempt to imply that the Chief
Justice would assign it to a bench which would not pass an order adverse to him.”

18
W.P. (Crl.) No. 176/2017, Criminal Orginal Jurisdiction in the Supreme Court of India.
19
(1996) SCC (7) 216.
Undoubtedly in this case, the principle of nemo judex in causa sua is held to be overruled by
the other principle of the Chief Justice being the ‘Master of the Roster’. Sadly, such
interpretation of the “Master of the Roster” by Constitutional Bench raises the office of the
Chief Justice above the institution of the Supreme Court. It places the institutional integrity in
the hands of one person failing to ring-fence a vitally important public institution against the
possibility of an impulsion.

It is humbly submitted that ‘master of roster’ cannot be 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. Any such power or its exercise
would result in a subversion of democracy and the Rule of Law as

guaranteed under Article 14 of the Constitution. The authority of the Hon’ble Chief Justice of
India as master of roster is not an absolute, arbitrary, singular power that is vested in the
Chief Justice alone and which may be exercised with his sole discretion.

Lord Esher in Allinson v. General Council of Medical Education and Registration said: “The
question is not, whether in fact he was or was not biased. The court cannot inquire into
that. . . . In the administration of justice, whether by a recognized legal court or by persons
who, although not a legal public court, are acting in a similar capacity, public policy requires
that, in order that there should be no doubt about the purity of the

administration, any person who is to take part in it should not be in such a position that he
might be suspected of being biased.”

In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon6 Lord Denning M.R. observed:

“. . . in considering whether there was a real likelihood of bias, the court does not look at the
mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may
be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he
would, or did, in fact favor one side at the expense of the other. The court looks at the
impression which would be given to other people. Even if he was as impartial as could be,
nevertheless if right-minded persons would think that, in the circumstances, there was a real
likelihood of bias on his part, then he should not sit.”

It is respectfully submitted that in recent months there have been number of instances in
which such powers have been exercised with legal malice by abusing the administrative
authority conferred under the Constitution, the Rules, the Handbook of Procedure and the
convention on the concerned Respondents. As a result, the matters are being listed in a
completely arbitrary and unjust manner so as to defeat interests of justice thereby
undermining the administration of justice.

Judicial review aims to protect citizens from abuse or misuse of power by any branch of the
State. (Minerva Mills Ltd. v. Union of India20). It is equally well settled that in judicial review
the Court is not concerned with the merits or the correctness of the decision but with the
manner in which the decision is taken or order is made. (S.R. Bommai v. Union of India21).

The Hon’ble Chief Justice of India while exercising administrative powers is clearly subject
to judicial review by this Hon’ble Court and is not immune from such judicial review. It is
respectfully submitted that the administrative exercise of powers by the Hon’ble Chief Justice
must be in consonance with the Constitutional requirements, must not be arbitrary and cannot
be contrary to the Rules, Handbook of Procedure and the Constitution.

The Hon’ble Chief Justice as Master of the Roll does not possess absolute, unguided and
uncanalized powers to list matters as he chooses. It is settled law that everybody is under the
law and this Hon’ble Court has consistently approved the principle: “Be you ever so high, the
law is above you” (See Narendra Madivalapa Kheni vs Manikrao Patil 22, Pancham Chand
And Others vs State Of Himachal Pradesh23, and Renu & Ors vs District & Sess.Judge
Tishazri24)

This Hon’ble Court in S.P. Gupta v Union of India 25 approvingly quoted eloquent words of
Justice Krishna Iyer to the following effect, “Independence of the judiciary is not
genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary
made to opposition measure nor Government’s pleasure”. Hon’ble Mr. Justice P N Bhagwati
following the said observation observed: “Judges should be of stern stuff and tough fibre,
unbending before power, economic or political, and they must uphold the core principles of
the Rule of Law which says “Be you ever so high, the law is above you.” This is the principle
of Independence of the Judiciary which is vital for the establishment of real participatory

20
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 @ 677-678
21
S.R. Bommai v. Union of India, (1994) 3 SCC 1
22
Narendra Madivalapa Kheni vs Manikrao Patil 1977 SCC (4) 153
23
Pancham Chand And Others vs State Of Himachal Pradesh (2008) 7 SCC 117
24
Renu & Ors vs District & Sess.Judge Tishazri (2014) 14 SCC 50
25
S.P. Gupta v Union of India (1981) Supp SCC 87
democracy, maintenance of the Rule of Law as a dynamic concept and delivery of social
justice to the vulnerable sections of the community.”