Masters above the Roster

The exercise of the powers of master of the roster has courted controversy in recent times from some limited quarters.

An outsider's view on the issue due to the skewed reportage on the subject, may lead to a questionable position in this regard. However, if one analyses the events sequentially based on publicly available records, a startling story emerges.

Such controversy is raked up almost from the same quarters during the tenure of every Chief Justice of India and it is time a message goes that the Supreme Court will not function as per the systematic pattern of a few to browbeat the administration of justice to suit their agenda. It is for this reason that following facts are analysed and placed here.

Recently, some half-baked claims have been peddled as “concerns” around the listing of certain specific matters before a specific Bench. The claims made in those “public” letters and opinion pieces suggest that the said matters, after being marked to other judges, were listed before a particular Bench. The alarm sought to be raised in the claims apart from questioning the settled powers of the Chief Justice as the master of the roster, deliberately ignores the elementary practices followed since inception for the listing of matters before division benches [comprising two or more judges].

When a matter is marked to judges of the Supreme Court, the marking is not merely done to the “senior” judge in a division bench. Rather, the matters are marked to an individual judge and follows the said judge if the sitting changes [if the said judge to whom the matter is marked happened to sit in a different combination].

For example, if a matter is marked to Judge “B” in a bench consisting of Judge “A” and Judge “B” in a combination of two judges, and thereafter Judge “B” starts sitting on a division bench with judge “C”, it is wholly normal for the matters which were listed before the combination of Judge “A” and “B” to follow Judge “B” and will come up before Judges “B” and “C”.

Without naming the matters and the judges, this happens in the normal course. The same is a regular occurrence when a judge is a part of two or more division benches. It is relevant to note here that the matters are not marked merely to the senior judge while allotting the coram. Matters are marked to all judges, including the “junior” judges on the bench also.

The issue of this so called “switching” of benches is even more common when a judge has been given a separate assignment or combination recently on a division bench as the first coram, as extra benches assemble on Mondays and Friday [miscellaneous days] when such judges are sitting in a different combination from the previous assignment.

During the said period, often the same judges go back to the previous division bench as second coram on non-miscellaneous days due to lesser number of benches. The claims which were made that the matters were shifted from one “senior” judge to another “junior” judge is a complete and deliberately peddled falsehood which have been propagated for reasons which may not be far to see.

A basic survey of the so-called “sensitive” matters which have been highlighted firmly establishes that no rules or listing guidelines were breached.

First was the bail petition of one Umar Khalid along with the constitutionality of the Unlawful Activities (Prevention) Act (UAPA) which is challenged by the petitioner. At first, on 09.08.2023, the matter could not be taken up by a bench of Justices AS Bopanna and Prashant Kumar Mishra due to a recusal by the latter judge. Thereafter, the matter was listed before Justice Aniruddha Bose and Justice Bela M Trivedi on 18.08.2023 after being assigned to Justice Trivedi. Thereafter, it was listed before Justice Trivedi and Justice Dipankar Datta on 05.09.2023, as Justice Trivedi was sitting in that combination. It may be noted that Justice Trivedi was not assembling with Justice Bose on the said day, as the latter was presiding a three-judge bench in Court No. 3 as the arguments relating to Article 370 were being heard before the Constitution Bench in Court No. 1. Thereafter, the matter was listed before Justice Bose and Justice Trivedi on 12.09.2023. The matter was then listed before Justice Trivedi and Justice Datta on 12.10.2023, as Justice Bose had assembled with Justice Sanjay Kumar on the said date due to a large number of seven-judge and nine-judge matters which were listed in Court 1 on that day. Thereafter, the matter was again listed before Justices Bose and Trivedi on 20.10.2023, 31.10.2023 and 29.11.2023.

It can be clearly ascertained that after the recusal from the bench of Justices Bopanna and Mishra, the matter must have been marked to Justice Trivedi, which has evidently followed her sittings after the initial recusal. At no instance has the matter been listed before any other bench where she was not on the coram.           

The next matter concerns the appeal filed by the State of Tamil Nadu through its Vigilance Department against a Madras High Court order that ruled that there was no reason for conducting another preliminary inquiry against former Tamil Nadu Chief Minister Edappadi K Palaniswami into an alleged highway tender scam, as the earlier report did not suffer from any apparent illegality or unreasonableness. The High Court had ordered a fresh inquiry against the AIADMK General Secretary only due to the change of government in the State. At first, on 18.09.2023, 25.09.2023 and 17.10.2023, the matter was listed before Justices Bose and Trivedi, where no substantive order was passed and a mere relisting took place without issuance of notice. On 29.11.2023, the said case was listed before Justice Trivedi and Justice Satish Chandra Sharma clearly as per the original marking. At this stage, for reasons best known to the counsel involved, objection was taken to the case being listed before the said bench. A basic analysis of the record of this case establishes that the matter was clearly originally marked to Justice Trivedi and has followed her sittings. At no point has the matter been listed before a bench of which she was not a part of. Interestingly, no objection was taken by the counsel on three occasions on the listing of the matter before Justice Trivedi when she was in a combination with Justice Bose. It is clear that in a case which involves a sensitive political issue, the vested interests involved shall go to any extent including maligning the great institution of Judiciary.

The next case in question was a special leave petition filed challenging an order passed by the Andhra Pradesh High Court last month declining to quash a first information report (FIR) arraigning ex-Chief Minister N Chandrababu Naidu as one of the accused in one alleged scam. At first, the matter was listed on 27.09.2023 before a bench comprising Justice Sanijv Khanna and Justice SVN Bhatti, which recused from the matter. Thereafter, the matter was heard on 03.10.2023, 09.10.2023, 10.10.2023, 13.10.2023 and 17.10.2023 by Justices Bose and Trivedi, during which the hearing was concluded and judgment was reserved.

As can been seen, after the recusal by the bench of Justices Khanna and Bhatti, the matter was consistently listed before Justices Bose and Trivedi. It was heard by the said combination only and reserved for judgment by the same combination. Similarly, in a connected matter, one SLP was filed by the State of Andhra Pradesh challenging the regular bail granted to Naidu in the alleged skill development scam case. On 28.11.2023, it was listed before Justice Trivedi and Justice Satish Chandra Sharma. It is not clear as to why the said listing has been doubted, as both the connected cases were always listed before a combination where Justice Trivedi was a part of the bench. It is not comprehensible as to what objection one can have with any of the listings in the said case.

The other case concerns the grant of medical bail to a minister from Tamil Nadu. The underhand suggestion was again geared towards listing of the matter from one bench to the other. The other suggestion was that a previous plea of the said minister was heard by a different bench and hence, this plea also should have been listed before the same bench. It is first necessary to tackle the second point – the claim that the there was an alleged “similarity” between the previous plea and the current plea for medical bail.

This is nothing but a crafty bench hunting tactic often used by Supreme Court lawyers through a simple mentioning in the proforma at the time of filing of any proceedings. The previous plea was listed before a bench of Justice Bopanna and MM Sundresh, wherein Justice Sundresh delivered the judgment which concerned the question of the power of the Enforcement Directorate to seek custody of a person arrested. That judgment also dealt with other connected questions on the maintainability of a Habeas Corpus Petition after a judicial order of remand is passed and whether the exclusion of time for the period of hospitalization beyond the first 15 days from the date of initial remand can be sought. The previous case and the present case of medical bail was as similar as crows and crocodiles. Except the petitioner, there was no similarity in the cases at all and it is beyond question that matters are marked on the basis of the issue at hand, and not as per the person who is approaching the Court.

From the record, it is noticeable that prior to initial listing, the medical bail plea of this powerful minister from the State of Tamil Nadu was surprisingly mentioned before Court No. 2 and not Court No. 1 on 19.10.2023. The matter was not in the official mentioning list for the day and Chief Justice DY Chandrachud was not sitting on the said day. It is not clear why the said mentioning was done on that specific day knowing well that the mentioning of matters is to be made only before the Chief Justice and primarily only through the email system. The email system is a transparent mechanism adopted by the incumbent Chief Justice which has worked efficiently over the period of time. The matter could have otherwise also been mentioned a day later before the Chief Justice. In any event, it was ordered by Court No. 2 to list the matter before appropriate bench. On 30.10.2023, the matter was listed before Justices Bose and Trivedi, when no arguments made as the order records that both parties sought time. On 20.11.2023 and 28.11.2023, it was listed before Justices Trivedi and Sharma. From the same, it is again clear that the matter was always originally marked to Justice Trivedi [after the mentioning before Court No. 2] and has followed her sittings. At no point has the matter been listed before a bench which she was not a part of. There is nothing surprising or out of the ordinary in any of the said listings.

The next matter concerned Congress leader DK Shivakumar, wherein the Central Bureau of Investigation (CBI) was in appeal assailing the interim order passed by the Karnataka High Court which stayed the order of the State government granting consent to the CBI to investigate the disproportionate assets case against Shivakumar. The said matter was listed on 22.09.2023 before Justices Bose and Trivedi. No substantive order was passed and the matter was adjourned for three weeks. Thereafter, on 16.10.2023, it was listed before Justices Bose and Trivedi, and notice was issued. Since the matter clearly appears to have been marked to Justice Trivedi, on 07.11.2023, it was listed before Justice Trivedi and Justice PS Narasimha. Again, no substantive order was passed as a letter was circulated by the respondent seeking an adjournment. On 10.11.2023, it was listed before Justices Trivedi and Sharma, who disposed of the plea with a request to the High Court to decide the application for vacation of stay filed by CBI within two weeks. At no point was the matter listed before a bench which Justice Trivedi was not a part of. Interestingly, Justice Trivedi eventually decided the matter in favour of DK Shivakumar by dismissing the SLP of the CBI.

The last matter mentioned in the list concerned Mahesh Sitaram Raut’s bail granted by the Bombay High Court. A suggestion was made that “connected” matters of other co-accused have been listed before other judges and ought to have followed the said judges. If one sees the pattern of listing, it will be clear that on 27.09.2023, the matter was listed before Justices Bose and Trivedi who granted a stay on the order in favour of the National Investigation Agency (NIA). On 06.11.2023, it was listed before Justices Bose and Trivedi. Thereafter, when the Bench of Justices Bose and Trivedi broke, the matter has come up in the regular bench matters headed by Justice Trivedi. It is clear again that the matter was marked to Justice Trivedi and has followed her sittings. At no point has the matter been listed before a bench which she was not a part of.

Again, there exists no hard-and-fast rule in terms of listing of matters which requires all matters of co-accused to be listed before the same bench. In the Bhima Koregaon matter itself, the matters have been listed before benches headed by Justices Dipak Misra, Arun Mishra, Lalit, Chandrachud, Joseph, Bose etc. sitting in various different combinations. In a large number of matters involving multiple accused persons and time gaps in different accused approaching the Supreme Court, the matters have been listed before different benches.

This entire eco-system of bench hunting is a dark part of the judicial system against which successive reforms have been sought to curtail and create institutional solutions. One must remember that judges are first and foremost servants of the law. Unlike politicians and citizens, they are far less susceptible to bias. This is due to the years of training a judge undergoes while reaching the Supreme Court. To what extent the personal beliefs or legal perception of a judge form part of his outlook towards the interpretive process of the law, is a question perhaps as old as the justice dispensation system itself. The American jurists Holmes, Gray and Jerome Frank term this as the 'realist school of jurisprudence' which, largely by consensus, is considered the least reliable/formal approach towards jurisprudence.

Judges, due to the precedent based system of common law, are often fiercely protective of their legacy. The image of the institution and the stature of the judge is determined by the respect he/she commands at the bar. The Achilles' Heel of judges therefore, is their 'image' and the respect they command. The tool of misleading articles and open letters raising some false alarm is nothing but a pressure tactic aimed at inherent vulnerabilities of judges who cannot counter such vicious propaganda. Judges are not a part of the political arena of point versus counter-point on TV debates and cannot counter any allegations in public. With the constant self-imposed weakening of the power of contempt, the judges are left powerless even if wild and baseless allegations are made with malice. The legacy and image, which is their only ornament, is damaged irrevocably, perhaps ruining the reputation which was built over decades of hard and honest work.

The present Chief Justice of India has been getting accolades from the entire Bar [and even outside the country] for the remarkable improvement he has brought to the Indian Judiciary and these attacks must not stop his progress towards upgrading the judicial system. As can be seen, the marking of matters in all the so-called dubious matters has been done with complete transparency and rationale. There exists nothing special about any of the judges to whom the matters were marked. However, the only commonality behind the said matters is perhaps the set of lawyers who appeared for the powers behind the said matters. It has previously happened over the course years in white collar crime matters where specific vakalatnamas were filed to oust the hearing by specific judges. There exists a cartel of senior advocates who claim expertise in these underhand techniques of bench hunting.

They wish to be the Masters above the Roster.

V Chitambaresh is a former judge of High Court of Kerala and a Senior Advocate at the Supreme Court of India.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect those of Bar & Bench.