TaxTMI 
TaxTMI 
2018 (7) TMI 2219
X X X X Extracts X X X X
X X X X Extracts X X X X
....stice of India (for short, the 'Chief Justice') as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocation of cases. 3. It may be mentioned at the outset that the petition acknowledges and accepts the legal principles that the Chief Justice is the "Master of Roster" and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. It is also conceded that adherence to this principle, namely, the Chief Justice is the Master of Roster, is essentially to maintain judicial discipline and decorum. It is also stated that the Chief Justice is first among equals, meaning thereby all Judges of the Supreme Court are equal with same judicial power, with Chief Justice as the senior most Judge. At the same time, it is contended that this power is not to be used to assert any superior authority by the Chief Justice and the power is to be exercised in a manner that is fair, just and transparent. As the Master of Roster, it is also conceded that it is the Chief Justice who has to decide as to which Bench will hear a particular case. The apprehension expressed is that keeping in view the predisp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the purpose of listing contrary thereto, with the above modification of replacing 'Chief Justice of India' with the collegium of 5 senior most judges of this Hon'ble Court. (d) That this Hon'ble Court may Clarify that when matters are mentioned for urgent hearing/listing, only a date/time of hearing would be fixed but the Bench to hear the matter would be determined in accordance with the Rules. (e) That this Hon'ble Court may be pleased to grant such other and further relief as may be deemed fit in the facts and circumstances of the case and as may be required in the interests of justice. 4. Mr. Dushyant Dave, learned senior Counsel appearing for the Petitioner, submitted that in certain cases, instances whereof are given in the writ petition, the manner in which matters are allocated to certain Benches reflect that either there was no strict adherence to the Rules or the transparency was lacking. He, however, at the outset, made it clear that the Petitioner does not seek to question the validity of any judicial orders and/or judgments which have been rendered in those cases or in other cases. The petition is confined to the scope and ambit of the powers ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....quate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations. It may also be noticed that it is not difficult to find reasons to justify what our bias or predilection or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual... This principle has been subsequently followed by this Court in the Second and Third Judges' case. The interpretation so canvassed by this Court must equally apply in respect of the power, if any, exclusively claimed by the Chief Justice as the Master of the Roster. It is well settled that in a statute a particular expression must receive the same and consistent meaning. (d) Functions as 'framing of Roster' and 'listing of important and sensitive matters' are extremely crucial and cann....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecided by the Court (or for that matter, by a particular Bench) strictly on legal principles to ensure that Rule of Law, which is a part of the basic structure of the Constitution, prevails. In this context, it was argued that the power to allocate the cases should not be with one individual and this could be taken care of by applying the principle laid down in the Second Judges' case wherein, while laying down the foundation of the Collegium system for the appointment of Judges, it was held: 427. It is, therefore, realistic that there has to be room for discretionary authority within the operation of the Rule of law, even though it has to be reduced to the minimum extent necessary for proper governance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not even to the Chief Justice of India as an individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts. xx xx xx 466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the Rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurali....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness. 7. Mr. Dave also referred to the following observations of Justice J.S. Verma (as His Lordship then was) in that very judgment: 478. This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior-most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner, submitted that the Petitioner has virtually accepted the legal position to the effect that the Chief Justice is the 'Master of Roster' and in that capacity he also has the authority to allocate the cases to different Benches/Judges of the Supreme Court. Therefore, the grievance, essentially, of the Petitioner was about the manner in which such a power is being exercised. However, at the same time, the Petitioner had also made it clear that he was not questioning particular decisions rendered by particular Benches which were assigned some of the important matters, pointed out the learned Attorney General. He submitted that the substance of the argument of the learned senior Counsel for the Petitioner was that in order to ensure that the cases are assigned in a fair and transparent manner, the term 'Chief Justice' should be interpreted to mean 'Collegium' of five senior most judges including the 'Chief Justice'. Response of the learned Attorney General was that though such a mechanism, as a solution, was found out by this Court in the judgments popularly known as Three Judges' case(s) for appointment of Judges in the High Court as well as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The Petitioner has himself, in the petition, referred to a three-Judge Bench in State of Rajasthan v. Prakash Chand and Ors. (1998) 1 SCC 1 held that the Chief Justice of the High Court is the Maser of Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. The Court stated thus: 59. From the preceding discussion the following broad conclusions emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment: (1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals. (2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted. (3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions. (4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llowed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible. 8. An institution has to function within certain parameters and that is why there are precedents, Rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1], which were stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench. 15. There is a reitera....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and powers of a Single Judge. Rule 1 thereof provides that it is the Chief Justice who is to nominate the Judges who would constitute a Bench to hear a case, appeal or matter. Where a reference is made to a larger Bench, the Bench making the reference is required to refer the matter to the Chief Justice who will constitute the Bench. Rule 1, thus, empowers the Chief Justice to constitute a Division Bench as well as a larger Bench. In case where the reference is made by a Bench to a larger Bench, again, which Judges will constitute the said Bench is left to the discretion of the Chief Justice. It nowhere says that the members of the Bench making reference are to be the members of the larger Bench as well. Likewise, Order XXXVIII of the Rules deals with applications for enforcement of fundamental rights Under Article 32 of the Constitution. Rule 1 thereof mentions the manner in which a petition Under Article 32 of the Constitution is to be dealt with. Likewise, Rule 12 deals with public interest litigation. 18. After incorporating the aforesaid provisions, the Court referred to the three Judge Bench judgment in the case of State of Rajasthan v. Prakash Chand and Ors. (1998) 1 SCC 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office Under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practise at the Bar. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iderations which are borne in mind. The Chief Justice is guided by the need to ensure the orderly functioning of the court and the expeditious disposal of cases. The publication of the roster on the websites of the High Courts provides notice to litigants and lawyers about the distribution of judicial work under the authority of the Chief Justice. This Court was constituted in 1950. In the preparation of the roster and in the distribution of judicial work, some of the conventions which are adopted in the High Courts are also relevant, subject to modifications having regard to institutional requirements. 20. The aforesaid judgment of the three Judges' Bench is a binding precedent. This judgment, in no uncertain terms, holds that the 'Chief Justice' in his individual capacity is the Master of Roster and it cannot read as Collegium of first three or five Judges. Thus, it is his prerogative to constitute the Benches and allocate the subjects which would be dealt with by the respective Benches. 21. The Constitution is silent on the role of the 'Chief Justice' 2. There is no specific provision relating thereto either in the Constitution or even in any other law. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which gives him the ultimate authority for determining the distribution of judicial work load. In Indian context, this power was given statutory recognition by Section 214(3) of the Government of India Act, 1935 which reads as under: (2) Rules made under this Section may fix the minimum number of judges who are to sit for any purpose, so however that no case shall be decided by less than three judges: Provided that, if the Federal Legislature makes such provision as is mentioned in this chapter for enlarging the appellate jurisdiction of the court, the Rules shall provide for the constitution of a special division of the court for the purpose of deciding all cases which would have been within the jurisdiction of the court even if its jurisdiction had not been so enlarged. (3) Subject to the provisions of any Rules of court, the Chief Justice of India shall determine what judges are to constitute any division of the court and what judges are to sit for any purpose. 23. Under the Constitution, the Supreme Court is given the authority to frame Rules for regulating generally the practice and procedure of the Court, including various subjects as enumerated in sub-Article (1) of A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....appointment of Judges. The relevant passages from the said judgment, which are relied upon by the learned senior Counsel for the Petitioner, have already been extracted above. The Court accepted that there has to be room for discretionary authority within the operation of Rule of law. At the same time, it was emphasised that such a discretion should be reduced to minimum extent necessary for proper governance, which can be achieved with the existence of proper guidelines or norms of general application. In this hue, the Court deemed it proper that conferment of the discretionary authority should not be with one individual but to a body of men and, thus, evolved the system of Collegium whereby the Chief Justice will have benefit of full interaction and effective consultation with other senior Judges, to ensure projection of all likely points and procuring the element of plurality in the final decision with the benefit of collective wisdom of all those involved in the process. However, it needs to be emphasised that the aforesaid resolution and concept of Collegium was innovated by judicial interpretation in the context of appointment of Judges in the constitutional Courts, i.e. the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 reaffirms the position of the Chief Justice of India as the head of the institution. From an institutional perspective the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd, in the process, protecting the Constitution and the democracy. Our Constitution guarantees free speech, fair trials, personal freedom, personal privacy, equal treatment under the law, human dignity and liberal democratic values. This bundle of non-negotiable rights and freedoms has to be protected by the judiciary. For this reason, independence of judiciary is treated as one of the basic features of the Constitution. Here, we may point out four major aspects of judicial status or performance, which are: independence; impartiality; fairness; and competence. 32. Alexander M. Bickel had emphasised way back in 19624 that the judiciary is the least dangerous branch as it has neither the purse nor the sword, by reproducing following words of wisdom of Alexander Hamilton5: Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....): While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary. An Independent and impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu. 35. In the same decision, J.S. Verma, J. echoed the aforesaid sentiments with the following message: The role of the Judiciary under the Constitution is a pious trust reposed by the people. The Constitution and the democratic-polity thereunder shall not survive, the day Judiciary fails to justify the said trust. If the Judiciary fails, the Constitution fails and the people might opt for some other alternative. 36. Thus, the faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. We live in an age of accountability. What is required of Judges is changing. Judgments of the Courts are widely discussed, debated and even criti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions and which can be easily adopted because of their universal application. After all, no system is fool-proof. There is always a scope for improvement. Reforms in the administration of justice, whether on judicial side or administratively, is a continuing process. We all learn from experiences and strive to do better. 40. Of course, it goes without saying that the matters need to be listed and assigned to the Benches in accordance with the Supreme Court Rules, 2013 and Handbook of Practice and Procedure. 41. Having regard to the aforesaid principles laid down in the binding precedents, it is difficult to accept the prayer of the Petitioner that the expression 'Chief Justice' appearing in the Supreme Court Rules, 2013 be read as 'Collegium' of five senior most Judges for the purpose of allocating the matters. At the same time, we feel that debate generated as a result has served its purpose. While saying so, we have in mind the following words of Hon'ble Justice Tun Mohamed Dzaiddin Abdullah, the then Chief Justice of Malaysia7: As judges, we are used to hearing, marshalling and evaluating evidence. In fact, when it comes down to brass tacks, that is just....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m of 5 senior judges of this Hon'ble Court. b) That this Hon'ble Court may be pleased to issue a writ of declaration or a writ in the nature of declaration or any other appropriate writ, order or direction holding and declaring that the consultation by the Registry, Officials for listing purposes, if any with the Hon'ble Chief Justice of India must include consultation with such number of senior-most judges as this Hon'ble Court may fix in the interest of justice,. c) That this Hon'ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction prohibiting the Hon'ble Chief Justice of India and concerned Respondents from listing any matter contrary to the Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure or picking and choosing Benches for the purpose of listing contrary thereto, with the above modification of replacing 'Chief Justice of India' with the collegium of 5 senior most judges of this Hon'ble Court. d) That this Hon'ble Court may Clarify that when matters are mentioned for urgent hearing/listing, only a date/tim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice of India, inter-alia, in "listing matters" so as to list matters of general public importance and/or of political sensitivity before only certain Benches contrary to the Supreme Court Rules, Handbook of procedure and conventions. Petitioner, however, specifically states in Paragraph 14 of the writ petition that "present petition does not seek to question any judicial orders and/or judgments". The Petitioner has made reference to certain cases, which according to Petitioner reflects and establishes gross abuse of powers. The Petitioner in context of above pleading has prayed in the writ petition that the word 'Chief Justice of India' must be deemed to mean a collegium of five senior judges of this Hon'ble Court, the relief claimed in the writ petition as noted above, is to the above effect. 48. Shri Dushyant Dave, learned senior Counsel assisted by Shri Prashant Bhushan, appearing for the Petitioner submits that constitution of benches being a sensitive matter, it should not be allowed to or such power should not be entrusted only to the Chief Justice but as this Court has held while interpreting Article 124 that recommendation for appointment of judges for the Supr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and non-arbitrary system for allocation of cases and formation of benches to allay any criticism of functioning of this Court. The object of Writ Petition is not to make allegations against anyone or to question any judgment of this Court; rather the entire endeavour is to improve the judicial system to strengthen the independence of judiciary. 50. We have considered the submissions of the learned Counsel for the parties and have perused the records. 51. Before we consider the rival submissions raised by the learned Counsel for the parties, it is relevant to notice the relevant constitutional provisions and the precedents on the subject. The Supreme Court of India is successor of Federal Court, which was established in the British India by the Government of India Act, 1935. For the first time, the Chief Justice of India was contemplated by Section 200 of the Government of India Act, 1935. Prior to establishment of Federal Court, it was High Courts in different States administering Justice. Against the decision of the High Court, appeal was contemplated before the Judicial Committee of the Privy Council. For the purposes of this case, it is not necessary to trace the judicial hist....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 54. Sub-section (3) of Section 214 specifically provided; that subject to the provisions of any Rules of court, the Chief Justice of India shall determine what judges are to constitute any division of the court and what judges are to sit for any purpose. The Chief Justice of India thus was exercising jurisdiction of constituting any division of the Court and nominating judges for sitting for different purposes. 55. Part V Chapter IV of the Constitution of India deals with the Union Judiciary. Article 145 of the Constitution provides for the Rules of the Court. Sub-article (1) of Article 145 provides that subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make Rules for regulating generally the practice and procedure of the Court, including various subjects as enumerated in sub-article (1). In exercise of power Under Article 145, Supreme Court has framed Rules from time to time. The Supreme Court Rules, 1950, the Supreme Court Rules, 1966 and thereafter the Supreme Court Rules, 2013 have been framed in exercise of power Under Article 145(1). In the Supreme Court Rules, 2013, Order VI deals with con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ompetence or domain of any Single or Division Bench of the Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. Therefore in the scheme of things judicial discipline demands that in the event a Single Judge or a Division Bench considers that a particular case requires to be listed before it for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne Judges are not expected to entertain any request from the advocates of the parties for listing of case which does not strictly fall within the determined roster. In such cases, it is appropriate to direct the counsel to make a mention before the Chief Justice and obtain appropriate orders. This is essential for smooth functioning of the Court. Though, on the judicial side the Chief Justice is only the "first amongst the equals", on the administrative side in the matter of constitution of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster exclusively vests in the Chief Justice and that a daily cause list is to be prepared under the directions of the Chief Justice....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der his directions. (4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice. (5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case. (6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. Xxxxxxxxxxxx 60. There are series of judgments reiterating the same view as expressed by this Court in State of Rajasthan (supra). In an earlier judgment, Union of India and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case........................... 63. It was further cautioned in the above case that in event the distribution is not done by the Chief Justice of India, it may generate internal strife on account of hankering for a particular jurisdiction or a particular case. The law laid down by this Court as is clear from precedents noted above, is that allocation of business of Court by the Chief Justice not only flows from the Constitutional provisions but is held to be prerogative of the Chief Justice and which is a convention followed from the very beginning. Apart from above, as noted above, the power of the Chief Justice to allocate cases flows from Rules framed Under Article 145 of the Constitution of India. 64. Now, we come to the submission which has been put forth by Shri Dushyant Dave forcefully that Chief Justice of India while allocating cases and forming benches for disposal of business of the Court should be read as collegium. Shri Dave in support of his above....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... clearly provides for consultation as a mandatory exercise and the only matter which is left to the discretion of the Central Government is the choice of the Judge of the Supreme Court and the High Courts who may be consulted. The words "as the President may deem necessary" qualify only the preceding words "such of the Judges of the Supreme Court and of the High Courts in the States." Which of the Judges of the Supreme Court and of the High Courts should be consulted is left to the discretion of the Central Government but consultation there must be with one or more of the Judges of the Supreme Court and of the High Courts. The Central Government must consult at least one Judge out of the Judges of the Supreme Court and of the High Courts before exercising the power of appointment conferred by Clause (2) of Article 124. This requirement is prescribed obviously because the Constitution-makers did not think it desirable that one person alone, howsoever high and eminent he may be, should have a predominant voice in the appointment of a Judge of the Supreme Court. But it seems that this requirement is not complied with in making appointments on the Supreme Court Bench presumably under a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Courts for the purpose of consultation. We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential -- it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited Sections of humanity.............................. 66. In Second Judges case, i.e. Advocates on Record Association case (supra), Justice J.S. Verma, speaking for majority laid down following in Paragraph 427 and 478: 427. .................................. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the answers should be read in conjunction with the body of this opinion: 1. The expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles. xxxxxxxxxxxxxxx 3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court. 4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment. 68. The word "Chief Justice" in Article 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (supra) has made following weighty observations: 9. ..................If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case........................... 71. The submission of learned Attorney General is that allocation of cases and constitution of benches, if it is given in the multiple hands, there shall be differences and hurdles in smooth distribution of work. We entirely agree with the above submission of learned Attorney General. We are thus unable to accept the submission of learned senior Counsel for the Petitioner that in allocating cases and formulating benches of the Supreme Court, the word "Chief Justice" should be read as collegium, which submission is unfounded and is rejected. 72. It is submitted by Shri Dave that in the Constitution whereas Chief Justice was to exercise any power individually, said provisions have been specifically included. He has referred to Article 130 of the Constitu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed above are fortified by a recent Constitution Bench judgment of this Court in Campaign for Judicial Accountability and Reforms v. Union of India and Anr., (2018) 1 SCC 196 and three Judge Bench judgment of this Court dated 11.04.2018 in Writ Petition (C) No. 147 of 2018, Asok Pande v. Supreme Court India through its Registrar and Ors., (2018) 5 SCC Scale 481. 77. Shri Dave also raised an alternate submission; that allocation of cases and constitution of benches should be undertaken by the entire Court. He submitted that all the Judges can sit together and formulate the procedure for constitution of Benches. The Rules framed by the Supreme Court Under Article 145 are the Rules made by the Court and when the Rules made by the Court specifically empowers the Chief Justice to nominate Benches for hearing a cause or appeal or matter, which has been conventionally the prerogative of the Chief Justice. The submission, that full Court should allocate cases and constitute the Benches, run counter to the constitutional scheme read with Rules framed Under Article 145. We, thus, are not impressed by the submission of Shri Dave that the roster should be prepared by the entire Court. 78. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....preme Court are time tested which practice and conventions of this Court have ripened with time which need not to be tinkered with or imitated from different international practices of different Courts. As noted above, the law laid down by this Court is that; the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice. We, thus, cannot import the international practices in the constitutional and statutory scheme of this Court. 82. Much emphasis is laid down by the learned Counsel for the Petitioner that the procedure and manner of allocation of cases and formulation of Benches should be one which is accessible to public and there should be objective criteria of exercise of the power by the Chief Justice. Manner and procedure for exercising the power should be put in public domain to allay any kind of misapprehension and to instill confidence in public in general. We have already noticed above that the manner and procedure for transaction of Court work is elaborately dealt with Supreme Court Rules, 2013. 83. Further, handbook on practice and procedure and office procedur....