Justice Chelameswar’s decision comes a day after bench headed by Chief Justice Dipak Misra ruled that allocation of cases is exclusive prerogative of the CJI

A day after a Supreme Court bench headed by Chief Justice Dipak Misra, in a controversial verdict, ruled that constitution of benches of the top court and allocation of cases is the “exclusive prerogative” of the head of the apex judicial institution, Justice Jasti Chelameswar, on Thursday (April 12), refused to hear a public interest litigation that sought clarity on the role of the CJI as master of the roster.

In remarks that can only be seen as sign of the growing schism in the benches of the highest court of the land, Justice Chelameswar – the senior-most judge after the Chief Justice – refused to hear the PIL filed on behalf of former Union minister Shanti Bhushan while commenting: “There is nothing much I can do in this. I am sorry. You please understand my difficulty… I don’t want one more reversal of my order in next 24 hours. This is why I can’t do it.”

Justice Chelameswar’s comment about not wanting a verdict delivered by him being overturned within a span of 24 hours was in reference to the November 10, 2017 judgment by a Constitution Bench headed by Chief Justice Dipak Misra in the Campaign for Judicial Accountability and Reforms case wherein the bench, also comprising Justices RK Agarwal, Arun Mishra, Amitava Roy and AM Khanwilkar had annulled the order of a two-judge bench headed by Justice Chelameswar.

Justice Chelameswar, who has been consistent in his criticism of Chief Justice Dipak Misra’s handling of the roster and had, along with three other senior judges, held an unprecedented press conference to slam his superior’s decisions in allocation of important cases to benches headed by junior judges, said that reasons for him not hearing Shanti Bhushan’s petition “are too obvious”.

A report by news agency PTI quoted Justice Chelameswar as saying: “someone is running a relentless tirade against me that I am up to grab something (sic)… Please understand my difficulty.”

The former law minister’s son and advocate Prashant Bhushan, however, persisted with the request to have the petition heard, claiming that the plea had been filed 10 days ago but the Supreme Court registry was yet to list it before a bench.

According to a report in The Hindu, Justice Chelameswar also told the junior Bhushan: “With two months left (Justice Chelameswar is due to retire on June 22), I don’t want to hear that I am trying to grab some office… Let the nation decide its own course.”

The report added that Prashant Bhushan’s insistence to still have the petition heard by the bench led to Justice Chelameswar’s puisne judge, Justice Sanjay Kishan Kaul, asserting that retirement is looming for his senior brother judge and “Justice Chelameswar should be spared from being dragged into controversy.”

Prashant Bhushan was then forced to move to the court of Chief Justice Dipak Misra with his request to have his father’s petition heard. It may be recalled that while filing the PIL, the Bhushans had urged the Supreme Court registry to not list the plea before a bench headed by the Chief Justice.

In Court No. 1, as Prashant Bhushan urged the judges to list the petition for hearing, Justice DY Chandrachud asked: “have the defects (in the petition) been removed?” With Prashant Bhushan replying in the affirmative and adding that he had earlier urged the court of Justice Chelameswar to hear the matter but that his bench conveyed to him that “it could not do anything about it”, Chief Justice Dipak Misra said: “we will look into it.”

Incidentally, the petition by the Bhushans seeks a ruling by the apex court on the administrative authority of the Chief Justice in his capacity as the apex court’s master of roster and for laying down the principles and procedure to be followed while allocation of cases to various benches.

The issue of the role of the CJI as master of roster had been settled, on Wednesday (April 11), in a verdict delivered by a bench headed by Chief Justice Dipak Misra himself against a petition filed by Allahabad-based lawyer Asok Pande. Several jurists and former judges of the Supreme Court and various high courts have criticised the verdict, arguing that the Chief Justice should have recused himself from hearing the petition filed by Pande as the petition directly concerned him.

The April 11 verdict, delivered by the bench that also comprised of Justices AM Khanwilkar and DY Chandrachud, reaffirms that the Chief Justice is “primus inter pares: the first among equals” and that “in the allocation of cases and the constitution of benches… has an exclusive prerogative”.

The 16-page verdict, authored by Justice Chandrachud, had dismissed Pande’s plea terming it as “scandalous” and said: “Underlying the submission that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that absent such a procedure the power will be exercised arbitrarily. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals… Article 146 reaffirms the position of the Chief Justice of India as the head of the institution… As a repository of constitutional trust, the Chief Justice is an institution in himself… The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less.”

On the issue of how judges must be selected for various benches and to hear different kinds of cases that come before the apex court, the verdict had said: “the petitioner (Asok Pande) seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear… every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice…”

“To suggest that any Judge would be 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 all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office,” the verdict adds.

—India Legal Bureau, with inputs from agencies