October 15, 2020
Master of Roster power of Chief justice
has been in controversy for a long time that it has become need of the hour to
find out the roots that can endanger the freedom of judiciary.
“Applaud
us when we run; Console us when we fall; cheer us when we recover; but let us pass
on – for God’s sake, let us pass on.” Justice Sikri once quoted Edmund
Burke while expressing his opinion on one of the key issue raised in 2018 that
revolved around the term “master of the roster” in the case of Shanti
Bhusan v. Supreme Court of India through its registrar and another[1]
On January 12, 2018, a phenomenal event took place which
hasn’t taken place ever in throughout the entire existence of any nation when
four senior-most judges of the Supreme Court held a public interview with their
doubts about the working of the system they were a part of. The essential
agenda which was raised in the session were as identified was about with the
allocation of cases done by the CJI upon his discretion and to his preferred
bench.
In the Indian and
judicial context, the term “master of roster” refers to the administrative
power exclusively available with the chief justice of India to decide and
allocate the cases that are brought or are pending before the supreme court to
his/her fellow judges or puisne judges. As it has been held in State of
Rajasthan v. Prakash Chand & Ors[2]: “That the Chief justice
is the master of the roster and he alone has the prerogative to constitute
benches of the court and allocate cases to the benches constituted, that the
puisne judges can only do that work as is allotted to them by the chief justice
or under his direction.” And thus this power is exercised with due diligence
and importance by chief justice because he is recognized as “first among the
equals” which is derived from a Latin term ‘Primus inter pares’ which means all
judges of the supreme court have equal judicial power, with chief justice being
the senior-most judge. The Supreme Court in S.P. Gupta v. Union of India[3] even held that
“Even though CJ is the head of the judiciary his opinion will only be a
consultative one and not a binding one”.
Article 14 and its implication on the administrative
power of the judiciary.
The underlying purpose
of Article 14 is to treat all persons similarly circumstanced alike, both in
privileges conferred and liabilities imposed. Classifications must not be
arbitrary but must be rational, that is to say, it must not only be based on
some qualities or characteristics which are found in all persons grouped
together and not in others who are left out, but those qualities and
characteristics must have reasonable relations to object of the legislation.[4]
Article 14 bars
discrimination and prohibits discriminatory laws. Article 14 is now proving as
a bulwark against any arbitrary or discriminatory state action. The horizons of
equality as embodied in Article 14 have been expanding as a result of the judicial
pronouncements and Article 14 has now come to have a “highly activist
magnitude”.[5]
There has been a
significant shift towards equating arbitrary or unreasonableness as the
yardstick by which administrative, as well as legislative actions, are to be
judged. A basic and obvious test to be applied in cases where administrative
action is attacked as arbitrary is to see whether there is any discernible
principle emerging from the impugned action and if so, does it satisfy the test
of reasonableness.
The Supreme Court in Sri
Srinivasa Theatre v Government of Tamil Nadu[6] 30, that the two
expressions ‘equality before the law’ and ‘equal protection of law’ do not mean
the same thing even if there may be much in common between them. “Equality
before the law”, is a dynamic concept having many facets. One facet is that
there shall be no privileged person or class and that none shall be above law.
Another facet is “the obligation upon the state to bring about, through the
machinery of law, a more equal society….. For, equality before the law can be
predicated meaningfully only in an equal society. The principle of equality of
law thus means not the same law applies to everyone but that law should deal
alike with all in one class; that there should be an equality of treatment
under equal circumstances. It means “that equals should not be treated unlike
and unlikes should not be treated alike. Likes should be treated alike.[7]
Article 14 thus means
that ‘equals should be treated alike’; it does not mean that ‘unequal ought to
be treated equally’.[8] Persons who are in the
like circumstances should be treated equally. On the other hand, where persons
or groups of persons are not situated equally, to treat them as equals would be
violative of Article 14 as this would itself result in inequality. As all
persons are not equal by nature or circumstances, the varying needs of
different classes or sections of people require different treatment. This leads
to classification among different groups of persons and differentiation between
such classes. Accordingly, to apply the principle of equality in a practical
manner, the courts have evolved the principle that if the law in question is
based on rational classification it is not regarded as discriminatory.[9]
A modern tendency
in modern democracies is to confer discretionary power on the government or
administrative officers (The Chief Justice while allocating cases discharges
administrative function hence he can be called an administrative officer). The
power is usually couched in very board phraseology and gives a large area of choice
to the administrator concerned to apply the law to actual factual situations.
The failure of check and balance mechanism
In order to ensure that
discretion is properly exercised, it is necessary that the statute, or any
rulebooks, in question lays down some norms or principles according to which
the administrator has to exercise the discretion. Many a time the statues or
any rulebook do not do this and leave the administrator free to exercise his
power according to his judgment.[10] This creates the danger
of official arbitrariness which is subversive of the doctrine of equality. To
mitigate this danger the court has invoked Article 14. In course of time,
Article 14 has evolved into a very meaningful guarantee against any action of
the administration which may be arbitrary, discriminatory or unequal,[11] the very question which
arises here is that whether there is any proper check and balances provided for
this Roster power which is conferred to the Hon’ble Chief justices/ Chief
Justice of India, the Supreme Court of India Handbook Practice and Procedure
and Office Procedure as well as the Supreme Court defines Chief Justice as a
Chief Justice of India and includes a judge under article 126 of the
Constitution to perform the duties of the Chief Justice and vests the power of
allocation of cases in the hands of the Chief Justice, the Judges of the
Supreme Court are all equal and Chief Justice is the first amongst the equal in
all the three Judges cases it was held that the Chief Justice is the head of
the Judiciary but also highlighted that his powers must be checked by the
senior most brother judges so that his/her opinion is not manipulated by any
other external sources although this judgment was for the collegiums system but
the judges presiding in the second judges case had thought about such an act.
Conclusion
In the light of the
findings, the author would very much like to assert that Master of Roster power
of Chief Justice if taken undue advantage of will continue to be in the
limelight of several critics where one like me would never fail out to point
out the failure of such mechanism because of its violative nature of article
14. Everyone, of course, has different opinions, based on their findings; this
one just is a result of my findings and interpretation.
[1]
[2] (1998) 1 SCC 1.
[7] Gauri Shankar v. UOI,
(1994) 6 SCC 349.
[8] M Jagdish Vyas v. UOI,
AIR 2010 SC 1596.
[9] Ashutosh Gupta v. State
of Rajasthan, (2002) 4 SCC 34.
[10] Supra 19 at 943.
[11] Shrinivasa Rao v. J
Veeraiah, AIR 1993 SC 929.
(Aditi Verma is a third year law student from University of Petroleum and Energy Studies)
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