SC to test if CJI's power to allot cases can be regulated

Clay Curtis
April 14, 2018

Entertaining a PIL by former law minister and senior advocate Shanti Bhushan, but disagreeing with his demand to devolve the CJI's exclusive power to allocate "cases of importance" to the collegium comprising the first five SC judges (in the order of seniority), a bench of Justices A K Sikri and Ashok Bhushan said there could be no review of the settled position that the CJI was the master of the roster.

The Supreme Court on Friday sought the assistance of attorney general K.K. Venugopal on a petition challenging the administrative powers of the chief justice of India regarding allocation of cases.

The PIL was filed in the backdrop of the January 12 press conference held by senior-most apex court judges including Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, an unprecedented event.

We are not going into it.

He asked Chief Justice Misra to deal with the issue on the judicial side by constituting a bench of seven or more senior most judges of the top court. "Don't say all this", the bench said. He urged the CJI to set up a Bench of seven or more seniormost judges to take up the issue of government's abuse of power by sitting over the collegium's recommendations.

"We are very, very concerned about what is happening in court and we believe that the option that is available to us is still open", Congress spokesperson Kapil Sibal said when asked about the party's stand on the issue. "I mentioned the first seven only because of the mandate of the Full Court in Justice Karnan's case", he said. "Some cases may appear sensitive to you, others may feel something else is sensitive". Dave said there are 14 instances when the CJI's discretionary power has been exercised arbitrarily, citing the matter of appointment of CBI special director RK Asthana.

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As Dave responded in the affirmative, Justice Sikri said: "Prima facie, we don't see that for this, the CJI be treated as Collegium".

The Executive (government) sitting over collegium recommendation and not saying anything, Justice Joseph said, sends a "wrong message which is loud and clear to all the judges down the line not to cause any displeasure to the Executive, lest they should suffer".

Justice Sikri said there are judgments that CJI is the Master of the Roster.

"Is this not a threat to the independence of judiciary?"

"This is not some instant coffee", he said and added: "We are dealing with an institution and it will be a very sad day if the Opposition has to take that step.it will be with very heavy heart". "If it can not be done administratively or judicially, then this will be the only provision in the Constitution which can not be challenged", he said, adding "it is unacceptable". "This is a serious matter", he said.

In his PIL, Shanti Bhushan has stated that the "master of roster" can not be unguided and unbridled discretionary power, exercised arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to particular judges.

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