By Philip Oommen and Kunal Jain
Introduction
Abu Abraham, who popularized cartoons as a form of ‘dissent’, had famously pictured President Fakhrudin Ahmed as a political puppet signing ordinances even from a bathtub.[1] Cartoons, ever since, have proven to be an effective mode of criticism, often used to trigger public debates over the injustices perpetrated by the political executive. However, of late, a rather disturbing trend of criticisms attributing political motives to the Supreme Court of India through cartoons is on the rise.[2] Such a trend might be imputable to the rising frustration amongst the masses as a result of Judicial Inaction in select cases involving the violation of fundamental rights of innumerable activists and journalists.[3]
Such instances of Judicial Evasion have drawn severe criticism, owing to the gradual fading of the ‘line’ differentiating judiciary from the executive in the popular perception, which in effect has irreparably damaged the SC’s image as an “independent” institution. Essentially, the SC’s position is comparable to that of Ex-President Ahmed, who was perceived to be hand-in-glove with the executive. Moreover, while the SC seems concerned about tweets and cartoons shaking the public confidence,[4] fraudulent depiction of reality to the court by the central government does not seem to be a concern at all. Instances of such depictions include the government submitting that “there are no migrants on the road”[5] during a full-fledged migrant crisis and the outright denial of the factum of Mr Soz’s detention.[6]
At a time when harsh criticisms aimed at the SC are on the rise, it is imperative to analyze why the top court might be perceived as a part and parcel of the executive. The authors are aware that a plethora of factors might affect the independence of the Indian Judiciary. However, in the instant article, the authors shall argue that the Roster System poses the greatest, nay most dangerous threat to SC’s independence.
The Roster system
The Roster System refers to the mechanism by which the cases are allocated to benches for being heard on merits. The CJI, being the ‘master of the roster’, determines the manner of allocation.[7] Essentially, the CJI exercises the powers of allocation in a two-fold manner. Firstly, the CJI decides which matters are to be heard by controlling the listing process through the registry.[8] Secondly, the CJI exercises the power by preparing the roster in two ways namely, the subject-wise allocation and issue-specific allocation.[9] While the former method of allocation refers to the routine allocation on the basis of subject-matter, the latter refers to the setting up of benches (constitution or otherwise) for specific purposes. Here, the predicament is that all the powers of roster-allocation are vested in a single individual, i.e. the CJI, who exercises them on behalf of the entire SC.
To understand the gravity of the situation, scrutiny of past events is pertinent. In January 2018, through the historic press conference held by senior SC Judges, the factum of selective bench allocation by the CJI was highlighted, whereby, it was alleged that cases having far-reaching consequences were allocated selectively.[10] However, the SC in the Shanti Bhushan case[11] dismissed the challenge to the roster system.
Shanti Bhushan case: a judgement based on faulty premises?
The SC upheld the roster system by declaring the CJI as the ‘master of the roster’. The Petitioner had argued that the powers of roster determination be exercised by a collegium, instead of the CJI alone. However, the petitioner’s arguments against the concentration of unbridled powers on a single individual judge were rejected by the 2-judge bench. Moreover, the bench highlighted that the involvement of a collegium would result in practical hardships.[12] In deciding so, the court relied upon an earlier precedent set by a CJI-led 3-Judge Bench in the Asok Pande case[13], whereby the CJI’s roster-constituting powers were upheld on two counts. Firstly, it was held that the SC Rules, 2013, which authorized the CJI to assign cases is framed by the Court under Article 145, therefore, a mandamus to frame rules in a particular manner could not be issued. Secondly, CJI was held to be an institution in himself and therefore could not be replaced by a collegium.
On scrutiny, the decision of the apex court in Shanti Bhushan and Asok Pande seems irrational and erroneous on four counts.
Firstly, the court whilst adjudicating the possibility of arbitrariness on part of the CJI, adopted a utopian approach by terming the CJI as an ‘institution’[14] and failed to acknowledge the humble presence of the ‘human being’ manning the post. Such an unwarranted leap of faith may have deleterious consequences, especially in light of allegations of CJI’s bias over the years. In the past, Justices Tulzapurkar and K. Hegde had criticized the CJI for influencing the outcome in crucial cases by “constructing” benches in a certain manner to minimize dissent,[15] an accusation further strengthened by the 2018 judges’ press conference. An apt example can be that of Justice Subba Rao, popularly known as the ‘greatest dissenter’,[16] who as a puisne judge dissented 48 times in 9 years,[17] but did not dissent even once during his 9-month tenure as the CJI[18]. More recent data highlights a trend that corroborates the aforesaid allegations wherein out of the 77% of 1532 cases decided by CJI-headed constitution benches between 1950 and 2009, CJI had dissented in only 10 such cases.[19] Thus, the court’s naïve reluctance to accept the prevailing ground realities, despite the overwhelming evidence to the contrary, may have set a bad precedent.
Secondly, the court undermined the importance of the roster allocation process by stating that the CJI’s role is restricted to mere allocation and does not regulate the functioning of the benches so constituted.[20] This observation is based upon an erroneous premise that fails to recognize the possible existence of predispositions in the judges’ minds. As acknowledged by Mr Fali Nariman, the SC has been frequented by judges having political and social agendas.[21] This failure to recognize ‘agendas’ is further aggravated by the presence of judges belonging to diverse backgrounds (for instance: religion, caste, region and ideology),[22] which facilitates the handpicking of suitable judges to attain the preferred outcomes for cases involving far-reaching consequences.
Thirdly, the court noted that CJI exercises the powers by subjectively assessing the interests, abilities, specialization and “many other relevant considerations” of individual judges.[23] Moreover, the absence of guidelines restricting discretion allows the CJI to constitute benches at will and to justify the same through the vague factors-based assessment criteria. The court also noted that the CJI does so in an ‘administrative capacity’, distinct from the ‘judicial’ role.[24] Since it is a well-settled principle of administrative law jurisprudence that ‘unfettered discretion’ capable of arbitrary-usage is sufficient to invalidate administrative actions,[25] there exists no reason why the CJI’s discretionary administrative powers be granted an exception.
Fourthly, the court sought to legitimize the roster system by relying upon the historical background of the CJI’s powers, which is in existence since the Government of India Act, 1935. However, the court failed to acknowledge that the scenario has fundamentally changed ever since! The pendency in SC has increased exponentially, from 690 cases in 1950 to a whopping 60,000 cases.[26] Resultantly, the sanctioned strength of SC has increased to 34 from 8 in 1950 and a vast majority of cases are heard by judges sitting in benches of two or three (or division benches).[27] Therefore, these changes have augmented the CJI’s powers by facilitating the exercise of discretion in two ways. (i) Due to the huge pendency, the CJI gets to prioritize and list cases based on his ‘subjective wisdom’. (ii) The CJI selects judges from a relatively larger pool for constituting the division benches, thereby, enhancing the involvement of discretion.
To conclude, the CJI prepares the SC Roster based on vague principles, capable of arbitrary-usage, to list matters at will from a vast docket of cases and to constitute benches by handpicking judges from a diverse pool. In essence, this amounts to equating the “Independence of SC” to that of the CJI. In other words, if the CJI’s independence is compromised, the entire SC follows.
CJI and high-handedness: a catastrophe unleashed?
Presently, the prominent factors which can affect the SC judges’ independence are the post-retirement employment opportunities and the opaque collegium-led appointment mechanism.[28] Nevertheless, both the aforesaid factors are incapable of affecting an independent-minded judge[29], once appointed to the SC, owing to the constitutional safeguards (security of tenure[30] and remuneration[31]). The Roster System, however, is uniquely capable of adversely affecting even the independent-minded judges, owing to the fear of possible exclusion from constitution benches in future, if the outcome is not in line with the CJI’s notions.[32] Furthermore, as already discussed, the CJI can always exclude independent judges altogether by ‘constructing’ benches.
Post-Shanti Bhushan, instances demonstrating CJI’s high-handedness are on the rise, making apparent the inherent hazards. In the controversial sexual harassment case, CJI Gogoi initiated the proceedings against himself, by constituting a bench and presiding over it in outright violation of the natural justice principles.[33]
The politically-sensitive electoral bonds case exemplifies the defects of the CJI-centric system. Prior to the crucial 2019-LokSabha Elections, a bench led by then-CJI Gogoi (presently, a Rajya Sabha MP) adjourned and denied a stay on the bonds scheme, citing a lack of time despite the petition having been filed immediately after the introduction of the scheme almost a year ago.[34] This essentially facilitated limitless anonymous corporate donations to political parties during the elections.[35] Since then, the case has been kept in abeyance owing to the CJI Bobde’s reluctance to adjudicate on the same.[36]
In March 2020, despite the immense national importance, CJI Bobde stated that the challenge to the Citizenship (Amendment) Act would only be heard after the Sabarimala Reference Case,[37] effectively keeping the matter in abeyance. Moreover, allegations of selective listing of habeas corpus petitions by eminent lawyers have become a commonplace.[38] The common thread here is that the CJI gets to single-handedly charter the course of the Apex Judiciary in matters of fundamental national importance.
Conclusion
Post-ADM Jabalpur,[39] the SC had regained its once-lost stature of an independent institution, owing to the long years of judicial activism.[40] So much so that the SC came to be considered as the most powerful court in the world.[41] However, of late, owing to the CJI’s excessive influence on SC’s functioning, a selectively-active role has been adopted by following the principle “show me the man and I’ll show you the law”.[42] Consequently, rampant violation of the dissenters’ constitutionally-guaranteed rights is underway unhindered,[43] landing the SC in soup after drawing severe criticism.
A former Pakistan PM whilst awaiting a death sentence imposed unfairly by a dictatorial regime, nostalgically recalled that “the noise and chaos of Indian Democracy” had a certain vitality as “no citizen’s fate depended on the whims or dispensation of one man or woman”.[44] In today’s context, this statement’s veracity seems doubtful as the Apex Court, which supposedly is the sentinel qui vive, is itself reeling under the overwhelming influence of one individual i.e., the CJI.
Justice Y. V. Chandrachud had famously observed that “there is greater threat to the independence of the judiciary from within than without” and as Justice A. P. Shah adds, such threats will be orchestrated, in all likelihood, at the behest of the executive.[45] Therefore, the roster system, being capable of crippling the SC, is unconstitutional as it strikes at the core of judicial independence, recognized as a part of the Basic Structure.[46] Thus, the roster system violates not only the administrative law principles but also the Basic Structure Doctrine, thereby, making the same unwarranted, nay unconstitutional.
To remedy the situation, the authors suggest that CJI’s powers be restricted by forming a permanent constitution-bench having a fixed composition of senior-most SC judges exclusively for hearing questions pertaining to fundamental rights, constitution’s interpretation or constitutionality of statutes. As highlighted in Shanti Bhushan, the introduction of a collegium is administratively inconvenient,[47] hence, not recommended. Instead, the preferred way forward could be to add more restrictions to CJI’s powers, if need be.
The authors, Philip Oommen and Kunal Jain, are currently law students at the Rajiv Gandhi National University of Law (RGNUL), Punjab.
[1] M. Nair, Satire and the Malayali: Why India’s best cartoonists almost always come from Kerala, The Scroll (10/12/2018), available at https://scroll.in/magazine/903768/the-best-indian-cartoonists-usually-come-from-kerala-but-why, last seen on 21/01/2021.
[2] SC notice to comic Kunal Kamra, cartoonist Rachita Taneja in contempt cases, Live Mint (18/12/2020), available at https://www.livemint.com/news/india/sc-notice-to-comic-kunal-kamra-cartoonist-rachita-taneja-in-contempt-cases-11608276380633.html, last seen on 21/01/2021; Two Comic Strips Led to Contempt Proceedings Against ‘Sanitary Panels’ Cartoonist: All You Need to Know, News18 (02/12/2020), available at https://www.news18.com/news/buzz/ag-nod-to-contempt-case-against-sanitary-panels-cartoons-on-sc-all-you-need-to-know-3137291.html, last seen on 21/01/2021; Indian cartoonist could be jailed for cartoons about India’s supreme court, RSF (11/01/2020), available at https://rsf.org/en/news/indian-cartoonist-could-be-jailed-cartoons-about-indias-supreme-court, last seen on 21/01/2021.
[3] I. Ara & S. Shantha, A List of Activists, Scholars and Scribes Whose Personal Liberty Remains at Judiciary’s Mercy, The Wire (13/11/2020), available at https://thewire.in/rights/jail-bail-hearings-court-delhi-riots-elgar-parishad, last seen on 21/01/2021.
[4] M. Rameez & S. Ray, The Pursuit of Dignity: A Tale of the Indian Supreme Court’s Contempt, Jurist (28/09.2020), available at https://www.jurist.org/commentary/2020/09/the-pursuit-of-dignity-a-tale-of-the-indian-supreme-courts-contempt/, last seen on 21/01/2021; Supreme Court initiates contempt action against Kunal Kamra, Rachita Taneja, The Hindu (18/12/2020), available at https://www.thehindu.com/news/national/supreme-court-initiates-contempt-action-against-kunal-kamra-rachita-taneja/article33361881.ece, last seen on 21/01/2021.
[5] Coronavirus lockdown: No migrant worker on road now, govt tells Supreme Court, India Today (31/03/2020), available at https://www.indiatoday.in/india/story/coronavirus-lockdown-no-migrant-worker-on-road-now-govt-tells-supreme-court-1661723-2020-03-31, last seen on 21/01/2021.
[6] Not Being Allowed Out, Says “Not Arrested” J&K Politician Saifuddin Soz, NDTV (30/07/2020), available at https://www.ndtv.com/india-news/politician-saifuddin-soz-was-never-detained-or-arrested-jammu-and-kashmir-tells-supreme-court-2270887, last seen on 21/01/2021.
[7] M. Jain, M. Sebastian, Breaking: CJI Is The Master Of Roster: SC Reiterates, Dismisses Shanti Bhushan’s Petition [Read Judgment], LiveLaw (06/07/2018), available at https://www.livelaw.in/cji-is-the-master-of-roster-sc-dismisses-shanti-bhushans-petition/, last seen on 21/01/2021.
[8] Order 3, Rule 7, The Supreme Court Rules, 2013.
[9] Order VI, The Supreme Court Rules. 2013; P. Mittal, SC to adopt new roster system for case allocation, CJI to hear all PILs, Live Mint (02/02/2018), https://www.livemint.com/Politics/VkdKGg6TNXALmDaqM5fKpK/Supreme-Court-to-adopt-new-roster-system-CJI-to-hear-all-PI.html last seen on 21/01/2021; See New Roster In SC: CJI Misra To Hear All PILs, LiveLaw (01/02/2018), available at https://www.livelaw.in/new-roster-sc-cji-misra-hear-pils/, last seen on 21/01/2021.
[10] Supreme Court crisis: All not okay, democracy at stake, say four senior-most judges, Business Line (18/01/2018), available at https://www.thehindubusinessline.com/news/supreme-court-crisis-all-not-okay-democracy-at-stake-say-four-seniormost-judges/article10028921.ece, last seen on 21/01/2021.
[11] Shanti Bhushan v. Supreme Court of India Through Its Registrar, (2018) 8 SCC 396.
[12] Ibid (Para 30).
[13]Asok Pande v. Supreme Court of India, (2013) 5 SCC 341.
[14] Ibid (Para 15)
[15] A. Chandrachud, Supreme Whispers, 62 (1st ed., 2018).
[16] G. H. Gadbois, Indian Judicial behavior, 5 Economic And Political Weekly 149, 153 (1970), available at https://www.jstor.org/stable/4359548?seq=1, last seen on 21/01/2021.
[17] Ibid, at 151.
[18] Ibid, at 166.
[19] N.Robinson, Interpreting the Constitution: Supreme Court Constitution Benches since Independence, 46 Economic and Political Weekly 27, 31 (2011) available at https://www.epw.in/journal/2011/09/commentary/interpreting-constitution-supreme-court-constitution-benches-independence, last seen on 21/01/2021.
[20] Supra 11 (Para 27).
[21] F. S. Nariman, Before Memory Fades, 310 (1st ed., 2014).
[22] A. Chandrachud, Supreme Whispers, 151-168 (1st ed., 2018).
[23] Supra 11 (Para 41).
[24] Supra 11 (Para 30)
[25] Union of India v. Kuldeep Singh, (2004) 2 SCC 590 (Para 21); Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 (Para 22)
[26] Over 88% rise in pending cases in Supreme Court since inception in 1950, The Economic Times (18/01/2017), available at https://economictimes.indiatimes.com/news/politics-and-nation/over-88-rise-in-pending-cases-in-supreme-court-since-inception-in-1950/articleshow/56647279.cms?from=mdr, last seen on 21/01/2021.
[27] Ibid; See A. Chandrachud, Supreme Whispers, 56 (1st ed., 2018).
[28] M. Srivastava, Does the Collegium System Ensure Independence of Indian Judiciary?, The Leaflet (25/11/2020), available at https://www.theleaflet.in/does-the-collegium-system-ensure-independence-of-indian-judiciary/#, last seen on 21/01/2021; N.G.R. Prasad, R. Siddhartha, Pre-retirement judgments and post-retirement jobs, The Hindu (23/04/2020), available at https://www.thehindu.com/opinion/op-ed/pre-retirement-judgments-and-post-retirement-jobs/article31408953.ece,last seen on 21/01/2021.
[29] The term ‘independent-minded judge’ was used by many commentators to describe Justice K. M. Joseph, owing to his lordship’s commitment towards performing his duties, irrespective of the probable ramifications. It is in this sense that the authors intend to use the term. See K. Rajagopal, Who is Kuttiyil Mathew Joseph?, The Hindu (19/05/2018), available at https://www.thehindu.com/news/national/who-is-kuttiyil-mathew-joseph/article23937081.ece, last seen on 21/01/2021; A.P. Kumar, Transfer of High Court Judges in India has a Sordid History, Bloomberg Quint (09/05/2019), available at https://www.bloombergquint.com/opinion/transfer-of-high-court-judges-in-india-has-a-sordid-history-uttarakhand-high-court-justice-km-joseph-harish-rawat, last seen on 21/01/2021.
[30] Art. 124, the Constitution of India.
[31] Art 125, the Constitution of India.
[32] Supra 22, at 64.
[33] A. Vishwanath, On harassment charge, CJI Gogoi did what he accused CJI Misra of — betray natural justice, The Print (23/04/2019), available at https://theprint.in/opinion/on-harassment-charge-cji-gogoi-did-what-he-accused-cji-misra-of-betray-natural-justice/225134/, last seen on 21/01/2021.
[34] No stay on electoral bonds, Supreme Court seeks donor details from parties, The Hindustan Times (30/04/2020), available at https://www.hindustantimes.com/india-news/supreme-court-verdict-on-electoral-bonds/story-uib9RYz8WmsAB5EiIA58xL.html, last seen on 21/01/2021.
[35] G. Bhatia, Supreme Court’s interim order on electoral bonds is disappointing, The Hindustan Times (13/04/2019), available at https://www.hindustantimes.com/columns/sc-s-interim-order-on-electoral-bonds-is-disappointing/story-yIzsFRChHZMoMZwbezMk4N.html, last seen on 21/01/2021.
[36] K. Rajagopal, Won’t stay electoral bonds scheme even now: CJI, The Hindu (20/01/2020), https://www.thehindu.com/news/national/supreme-court-declines-stay-on-electoral-bonds-scheme/article30605530.ece, last seen on 21/01/2021.
[37] Pleas challenging CAA to be heard after Sabarimala reference case: SC, The Hindu (05/03/2020), available at https://www.thehindu.com/news/national/pleas-challenging-caa-to-be-heard-after-sabarimala-reference-case-sc/article30991130.ece, last seen on 21/01/2021.
[38] ‘Selective Listing’ Of Matters: SCBA President Writes To Supreme Court Against Urgent Listing Of Arnab Goswami’s Case, LiveLaw (10/11/2020), available at https://www.livelaw.in/top-stories/selective-listing-of-matters-scba-president-writes-to-supreme-court-against-urgent-listing-of-arnab-goswamis-case-165751?from-login=277153, last seen on 21/01/2021.
[39] ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
[40] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832; Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568.
[41] IN CONVERSATION WITH PROF WILLIAM HUBBARD, The Economic times (09/10/2019), available at https://economictimes.indiatimes.com/blogs/courts-commerce-and-the-constitution/in-conversation-with-prof-william-hubbard/, last seen on 21/01/2021.
[42] G. Bhatia, A plaintive lament on liberty that rings hollow, The Hindu (20/01/2021), available at https://www.thehindu.com/opinion/lead/a-plaintive-lament-on-liberty-that-rings-hollow/article33612396.ece, last seen on 21/01/2021.
[43] Supra 3.
[44] F. S. Nariman, Story of two politicians, The Indian Express (07/01/2008), available at http://archive.indianexpress.com/news/story-of-two-politicians/258712/2, last seen on 21/01/2021.
[45] A. P. Shah, Chief Justice: A First Among Equals, The Wire (09/03/2018), available at https://thewire.in/law/chief-justice-supreme-court-dipak-misra, last seen on 21/01/2021.
[46] Supreme Court Advocates On Record Assn v. Union of India, (1993) 4 SCC 441.
[47] Supra 11 (Para 30).
The Journal of Indian Law and Society 