REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 789 OF 2018

(ARISING OUT OF DIARY NO. 12405 OF 2018)

SHANTI BHUSHAN .....PETITIONER(S)

VERSUS

SUPREME COURT OF INDIA

THROUGH ITS REGISTRAR AND ANOTHER .....RESPONDENT(S)

J U D G M E N T

A.K.SIKRI, J.

The name of respondent No.2 is deleted from the array of

parties, inasmuch as, having regard to the nature of submissions

made during hearing, which would be taken note of at the

appropriate place, respondent No.2 is not a necessary party.

2.The petitioner herein, who is a senior advocate practicing in thisCourt and enjoys credible reputation in the profession as well asin public, has filed this writ petition under Article 32 of theConstitution of India. In this writ petition, he seeks this Court toclarify the administrative authority of the Chief Justice of India (for

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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 predisposition of particular

Judges, the Chief Justice may assign cases to those Judges to

achieve a predetermined outcome. This calls for, according to

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the petitioner, devising a more rational and transparent system of

listing and re-allocation of the matters to avoid any such

possibilities. As per the petitioner, the matters need to be listed

by strictly following the provisions of the Supreme Court Rules,

2013 (hereinafter referred to as the ‘Rules’). These Rules, no

doubt, empower the Chief Justice to allocate certain cases by

exercising his discretionary power. The petitioner submits that in

order to ensure that such a discretion is exercised in a fair

manner, the expression ‘Chief Justice’ should be interpreted to

mean ‘Collegium’ of first five Judges of the Supreme Court, as

held by this Court in Supreme Court Advocates-On-Record

Association and Others v. Union of India

1

(famously known as

the “Second Judges’ case”). On the aforesaid edifice, the

petitioner has prayed for the following directions:

“(a)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 listing of matters must strictly

adhere to the Supreme Court Rules, 2013 and

Handbook on Practice and Procedure and Office

Procedure, subject to the following clarification:

i) The words ‘Chief Justice of India’ must be deemed

to mean a collegium of 5 senior judges of this

Hon’ble Court.

(b)That this Hon’ble court may be pleased to issue a writ

of declaration of a writ in the nature of declaration or

any other appropriate writ, order or direction holding

and declaring that the consultation by the Registry

1(1993) 4 SCC 441

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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/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

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cases. The petition is confined to the scope and ambit of the

powers of the Chief Justice in listing matters and to seek

declaration that the power must be exercised lawfully and on

objective consideration, thereby eschewing any subjective

considerations. The entire thrust of his submissions was,

therefore, to suggest the ways and means for achieving the

same. In this behalf, he advanced the following propositions:

(a) Constitution of India expressly confers powers on the

Supreme Court under Article 145 to make Rules “for regulating

generally the practice and procedure of the court” with the

approval of the President. Such Rules may include, ‘rules as to

the procedure for hearing appeals and other matters pertaining to

appeals including the time within which appeals to the Courts are

to be entered’. Sub-Articles (2) and (3) thereunder fix minimum

number of judges to sit for any purpose including for deciding a

case involving substantial question of law as to the interpretation

of the Constitution or a Reference under Article 143.

Article 124 establishes and constitutes the Supreme Court

by providing, ‘there shall be a Supreme Court of India consisting

of a Chief Justice and, until Parliament by law prescribes a larger

number of not more than seven other Judges (original)’.

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Thus, the expression ‘Supreme Court’ includes the Chief

Justice and other Judges of the Court. The power to frame Rules

under Article 145 is, therefore, conferred upon the entire Court,

which power includes power to frame the Roster and direct

hearing/ listing of matters.

(b)Thus, although the Chief Justice is the Master of the Roll

under the convention, the Constitution has departed from the

conventional Scheme to confer power upon the supreme Court.

(c)The expression ‘Chief Justice’ has been interpreted by a

Constitution Bench of this Court in S.P. Gupta v. Union of India

and Another

2

(known as the “First Judges’ case”) to mean a

‘Collegium’. This was done to ensure a guard against the

absolute power being conferred upon the Chief Justice alone. It

was observed in the said judgment as follows:

“31...We are all human beings with our own likes and

dislikes, our own predelictions and prejudices and our mind

is not so comprehensive as to be able to take in all aspects

of a question at one time and moreover sometimes, the

information on which we base our judgments may be

incorrect or inadequate 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

predeliction 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

2(1981) Supp. SCC 87

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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 cannot be left to the

sole discretion of the Chief Justice as per the law laid down in the

First Judges’ case. In any case, such exclusive discretion is

anathema to the constitutional scheme. It is, therefore,

imperative that the expression ‘Chief Justice’ must mean the

Supreme Court or, as held by this Court in series of judgments,

the ‘Collegium’ of five senior most judges, to provide appropriate

checks and balances against any possible abuse.

(e)The Rules framed under Article 145 of the Constitution

confer powers on the Registrar under Order III Rules 7 and 8 to

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deal with preparation of lists and fixing of hearings of petitions,

which would include appropriate listings. The matters be listed

strictly as per these Rules.

5.To put it pithily, the submission is that once the Rules are framed,

matters should be listed and fixed for hearing as per the

provisions, particularly Order III Rules 7 and 8, thereof. Further,

in any case, the expression ‘Chief Justice’ has to assign the

meaning by reading it as a ‘Collegium’ so that important and

sensitive matters are assigned to particular Benches by the

Collegium of five senior most Judges, including the Chief Justice.

6.Mr. Dave elaborated the aforesaid submissions by arguing that

fairness in action was the hallmark of any administrative power

and while exercising the power as a Master of Roster in allocating

a Bench to hear particular kind of cases, the Chief Justice

performs his function in an administrative capacity. He also

submitted that applicability of the principle of bias is to be judged

by applying the test of reasonable apprehension of bias in the

mind of a party, as held in the case of Ranjit Thakur v. Union of

India and Others

3

. It was emphasised that the Constitution of

India has created an independent judiciary which is vested with

3(1987) 4 SCC 611

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the power of judicial review to determine the legality of

administrative actions and, thus, it becomes the solemn duty of

the judiciary to keep the organs of the State within the limits of the

power conferred by the Constitution by exercising the power of

judicial review which is the sentinel on the qui vive. When such

an important task is assigned to the judiciary, power of listing the

cases has to be exercised in a fair and transparent manner so as

to instill confidence in the public at large that the matter shall be

decided 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 is

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provided by the conferment of the discretionary authority

not to one individual but to a body of men, requiring the

final decision to be taken after full interaction and effective

consultation between themselves, to ensure projection of

all likely points of view and procuring the element of

plurality in the final decision with the benefit of the

collective wisdom of all those involved in the process. The

conferment of this discretionary authority in the highest

functionaries is a further check in the same direction. The

constitutional scheme excludes the scope of absolute

power in any one individual. Such a construction of the

provisions also, therefore, matches the constitutional

scheme and the constitutional purpose for which these

provisions were enacted.

xx xx xx

450. It is obvious, that the provision for consultation with

the Chief Justice of India and, in the case of the High

Courts, with the Chief Justice of the High Court, was

introduced because of the realisation that the Chief Justice

is best equipped to know and assess the worth of the

candidate, and his suitability for appointment as a superior

Judge; and it was also necessary to eliminate political

influence even at the stage of the initial appointment of a

Judge, since the provisions for securing his independence

after appointment were alone not sufficient for an

independent judiciary. At the same time, the phraseology

used indicated that giving absolute discretion or the power

of veto to the Chief Justice of India as an individual in the

matter of appointments was not considered desirable, so

that there should remain some power with the executive to

be exercised as a check, whenever necessary. The

indication is, that in the choice of a candidate suitable for

appointment, the opinion of the Chief Justice of India

should have the greatest weight; the selection should be

made as a result of a participatory consultative process in

which the executive should have power to act as a mere

check on the exercise of power by the Chief Justice of

India, to achieve the constitutional purpose. Thus, the

executive element in the appointment process is reduced

to the minimum and any political influence is eliminated. It

was for this reason that the word ‘consultation’ instead of

‘concurrence’ was used, but that was done merely to

indicate that absolute discretion was not given to anyone,

not even to the Chief Justice of India as an individual,

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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

plurality in its formation. In actual practice, this is how the

Chief Justice of India does, and is expected to function so

that the final opinion expressed by him is not merely his

individual opinion, but the collective opinion formed after

taking into account the views of some other Judges who

are traditionally associated with this function.

xx xx xx

468. The rule of law envisages the area of discretion to be

the minimum, requiring only the application of known

principles or guidelines to ensure non-arbitrariness, but to

that limited extent, discretion is a pragmatic need.

Conferring discretion upon high functionaries and,

whenever feasible, introducing the element of plurality by

requiring a collective decision, are further checks against

arbitrariness. This is how idealism and pragmatism are

reconciled and integrated, to make the system workable in

a satisfactory manner. Entrustment of the task of

appointment of superior judges to high constitutional

functionaries; the greatest significance attached to the view

of the Chief Justice of India, who is best equipped to

assess the true worth of the candidates for adjudging their

suitability; the opinion of the Chief Justice of India being the

collective opinion formed after taking into account the

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views of some of his colleagues; and the executive being

permitted to prevent an appointment considered to be

unsuitable, for strong reasons disclosed to the Chief

Justice of India, provide the best method, in the

constitutional scheme, to achieve the constitutional

purpose without conferring absolute discretion or veto upon

either the judiciary or the executive, much less in any

individual, be he the Chief Justice of India or the Prime

Minister.

xx xx xx

480. The primacy of the judiciary in the matter of

appointments and its determinative nature in transfers

introduces the judicial element in the process, and is itself

a sufficient justification for the absence of the need for

further judicial review of those decisions, which is ordinarily

needed as a check against possible executive excess or

arbitrariness. Plurality of judges in the formation of the

opinion of the Chief Justice of India, as indicated, is

another inbuilt check against the likelihood of arbitrariness

or bias, even subconsciously, of any individual. The judicial

element being predominant in the case of appointments,

and decisive in transfers, as indicated, 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 seniormost 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

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fact that he has come from the same High Court, or

otherwise. Article 124(2) is an indication that ascertainment

of the views of some other Judges of the Supreme Court is

requisite. The object underlying Article 124(2) is achieved

in this manner as the Chief Justice of India consults them

for the formation of his opinion. This provision in Article

124(2) is the basis for the existing convention which

requires the Chief Justice of India to consult some Judges

of the Supreme Court before making his recommendation.

This ensures that the opinion of the Chief Justice of India is

not merely his individual opinion, but an opinion formed

collectively by a body of men at the apex level in the

judiciary...”

8.Learned senior counsel also relied upon paragraph 44 of the

judgment in Special Reference No. 1 of 1998

4

(popularly known

as the “Third Judges’ case”) wherein the Court answered the

questions under Reference by clarifying as follows:

“44. The questions posted by the Reference are now

answered, but we should emphasise that the answers

should be read in conjunction with the body of this opinion:

xx xx xx

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

seniormost 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 seniormost 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.”

4(1998) 7 SCC 739

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9.Towing the aforesaid line, Mr. Dave proceeded to argue that the

modern trend in all robust legal systems governed by democratic

principles was to ensure that even administrative powers of the

Chief Justice must be shared with other senior Judges so that the

power is exercised properly and validly. In support, the learned

senior counsel referred to the system that prevails in the United

Kingdom Supreme Court, High Court of Australia (which is the

apex court of that country), Supreme Court of Canada, German

Federal Court and even European Court of Human Rights and

European Court of Justice.

10.Mr. Venugopal, learned Attorney General, in reply to the aforesaid

arguments of the petitioner, 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

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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 in the Supreme Court, suggestion was

totally impractical when it comes to discharge of administrative

duties by the ‘Chief Justice’ in his capacity as the Master of

Roster. Strongly refuting this suggestion, he argued that such an

interpretation was not only impractical, it would even result in a

chaos if day to day administrative work, including the task of

constituting the Benches and allocating cases to the Benches, is

allowed to be undertaken by the ‘Collegium’. His submission was

that such matters of constituting the Benches and allocating

cases to the respective Benches has to be left to the sole

discretion of the ‘Chief Justice’ acting in his individual capacity, for

the smooth functioning of the Court, by reposing faith and trust in

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the ‘Chief Justice’ who occupies the highest constitutional

position in the judiciary.

11.We have bestowed serious consideration to the submissions

made by the counsel on either sides. It may also be clarified at

the outset that this matter has not been treated as adversarial in

nature. This Court would also like to place on record that it does

not dispute the bona fides of the person like the petitioner, who

enjoys considerable respectability, in filing this petition. This

Court has considered the entire matter objectively and with great

sense of responsibility. At the same time, it also becomes our

duty to decide the matter in accord with the legal position that is

contained in the Constitution and the Statutes and the legal

principles engrafted in the precedents of this Court having binding

effect.

ROLE OF THE ‘ CHIEF JUSTICE ’ AS THE MASTER OF ROSTER

12.There is no dispute, as mentioned above, that ‘Chief Justice’ is

the Maser of Roster and has the authority to allocate the cases to

different Benches/Judges of the Supreme Court. The petitioner

has been candid in conceding to this legal position. He himself

has gone to the extent of stating in the petition that this principle

that ‘Chief Justice’ is the Maser of Roster is essential to maintain

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judicial discipline and decorum and also for the proper and

efficient functioning of the Court. Notwithstanding this

concession, it would be imperative to explain this legal position

with little elaborations, also by referring to some of the judgments

of this Court which spell out the scope and ambit of such a power.

13.The petitioner has himself, in the petition, referred to a

three-Judge Bench in State of Rajasthan v. Prakash Chand &

Ors.

5

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 constituting the bench themselves and one or both

the Judges constituting such bench sit singly and take up

5(1998) 1 SCC 1

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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.”

14.The same principle in Prakash Chand’s case was applied as

regards the power of the ‘Chief Justice’ and in the matter of

Campaign for Judicial Accountability and Reforms v. Union

of India & Anr.

6

five Judge Bench held:

“6. There can be no doubt that the Chief Justice of India is

the first amongst the equals, but definitely, he exercises

certain administrative powers and that is why in Prakash

Chand [State of Rajasthan v. Prakash Chand, (1998) 1

SCC 1] , it has been clearly stated that the administrative

control of the High Court vests in the Chief Justice alone.

The same principle must apply proprio vigore as regards

the power of the Chief Justice of India. On the judicial side,

he is only the first amongst the equals. But, as far as the

Roster is concerned, as has been stated by the

three-Judge Bench in Prakash Chand [State of Rajasthan

v. Prakash Chand, (1998) 1 SCC 1] , the Chief Justice is

the Master of the Roster and he alone has the prerogative

to constitute the Benches of the Court and allocate cases

to the Benches so constituted.”

Further, the Constitution Bench held:

6(2018) 1 SCC 196

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“7. The aforesaid position though stated as regards the

High Court, we are absolutely certain that the said principle

is applicable to the Supreme Court. We are disposed to

think so. Unless such a position is clearly stated, there will

be utter confusion. Be it noted, this has been also the

convention of this Court, and the convention has been so

because of the law. We have to make it clear without any

kind of hesitation that the convention is followed 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 reiteration of this very legal position by another three

Judge Bench judgment of this Court in Asok Pande v. Supreme

Court of India through its Registrar and Ors.

7

WHETHER THE EXPRESSION ‘CHIEF JUSTICE’ IN THE SUPREME

COURT RULES IS TO BE READ AS ‘COLLEGIUM’ OF FIRST FIVE

JUDGES?

7Writ Petition (Civil) No. 147 of 2018 decided on April 11, 2018

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16.In this aforesaid backdrop, we have to consider the principal

submission of the petitioner viz. whether the expression ‘Chief

Justice’ in the Supreme Court Rules is to be read as ‘Collegium’

of first five Judges? As a corollary, whether power of constituting

the Benches and listing the cases be exercised by the Collegium

and not the Chief Justice alone? That is the entire edifice on

which the petitioner’s case is built upon. To begin with, we may

remark that Asok Pande covers this issue as well. That

judgment was rendered in a writ petition filed by the petitioner

under Article 32 of the Constitution wherein he had raised number

of grievances. Apart from some personal grievances raised in the

said writ petition pertaining to some proceedings in the Allahabad

High Court, relief which he had sought was for issuance of writ of

mandamus to the first respondent (Supreme Court of India) to

evolve the set of procedure for constituting the Benches and

allotment of jurisdiction to different Benches of the Supreme

Court. In this behalf, he wanted that there should be a specific

rule in the Rules to the effect that the three Judge Bench in the

Chief Justice’s Court should consist of the Chief Justice and two

senior-most Judges and also that Rules be made to the effect

that the Constitution Bench shall consist of five senior-most

Judges or three senior most Judges and two junior-most Judges.

Writ Petition (C) No. of 2018 Page 20 of 41

(arising out of Diary No. 12405 of 2018)

Similar mandamus was prayed for in respect of the Allahabad

High Court to evolve identical set of Rules with respect to

formation of Benches.

17.While negating the aforesaid relief claimed by the said petitioner,

the Court took note of the provisions of Article 145 of the

Constitution which empowers the Supreme Court to make Rules

for regulating generally the practice and procedure of the Court,

including the matters specifically mentioned in clause (I) of Article

145 of the Constitution, which Rules are to be made with the

approval of the President of India. The Court also referred to

Order VI of the Rules. This order deals with the constitution of

division courts 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

Writ Petition (C) No. of 2018 Page 21 of 41

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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 Others

8

as well as the

Constitution Bench judgment in Campaign for Judicial

Accountability and Reforms’s case, the relevant discussion in

respect of which has already been elucidated above. On that

basis, the relief claimed by the said writ petitioner was termed as

‘manifestly misconceived’ and the discussion that ensued in this

behalf reads as under:

“11. In view of this binding elucidation of the authority of the

Chief Justice of India, the relief which the petitioner seeks

is manifestly misconceived. For one thing, it is a well

settled principle that no mandamus can issue to direct a

body or authority which is vested with a rule making power

to make rules or to make them in a particular manner. The

Supreme Court has been authorised under Article 145 to

frame rules of procedure. A mandamus of the nature

sought cannot be issued. Similarly, the petitioner is not

entitled to seek a direction that Benches of this Court

8(1998) 1 SCC 1

Writ Petition (C) No. of 2018 Page 22 of 41

(arising out of Diary No. 12405 of 2018)

should be constituted in a particular manner or, as he

seeks, that there should be separate divisions of this Court.

The former lies exclusively in the domain of the prerogative

powers of the Chief Justice.

12. Quite apart from the fact that the relief sought is

contrary to legal and constitutional principle, there is a

fundamental fallacy in the approach of the petitioner, which

must be set at rest. The petitioner seeks the establishment

of a binding precept under which a three judge Bench in

the Court of the Chief Justice must consist of the Chief

Justice and his two senior-most colleagues alone while the

Constitution Bench should consist of five senior-most

judges (or, as he suggests, three ‘senior-most’ and two

‘junior-most’ judges). There is no constitutional foundation

on the basis of which such a suggestion can be accepted.

For one thing, as we have noticed earlier, this would

intrude into the exclusive duty and authority of the Chief

Justice to constitute benches and to allocate cases to

them. Moreover, the petitioner 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. 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

Writ Petition (C) No. of 2018 Page 23 of 41

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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.”

(emphasis added)

19.On the aforesaid analogy, the Court also rejected the prayer of

the said petitioner in regard to the constitution of Benches in the

High Courts as well. Some of the discussion in this behalf, which

may be relevant for our purposes as well, is reproduced below:

“14...The High Courts periodically publish a roster of work

under the authority of the Chief Justice. The roster

indicates the constitution of Benches, Division and Single.

The roster will indicate the subject matter of the cases

assigned to each bench. Different High Courts have their

own traditions in regard to the period for which the

published roster will continue, until a fresh roster is notified.

Individual judges have their own strengths in terms of

specialisation. The Chief Justice of the High Court has to

bear in mind the area of specialisation of each judge, while

deciding upon the allocation of work. However,

specialisation is one of several aspects which weigh with

the Chief Justice. A newly appointed judge may be rotated

in a variety of assignments to enable the judge to acquire

expertise in diverse branches of law. Together with the

need for specialisation, there is a need for judges to have a

broad-based understanding of diverse areas of law. In

deciding upon the allocation of work and the constitution of

benches, Chief Justices have to determine the number of

benches which need to be assigned to a particular subject

matter keeping in view the inflow of work and arrears. The

Chief Justice of the High Court will have regard to factors

such as the pendency of cases in a given area, the need to

dispose of the oldest cases, prioritising criminal cases

where the liberty of the subject is involved and the overall

strength, in terms of numbers, of the court. Different High

Courts have assigned priorities to certain categories of

cases such as those involving senior citizens, convicts who

are in jail and women litigants. These priorities are

considered while preparing the roster. Impending

Writ Petition (C) No. of 2018 Page 24 of 41

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retirements have to be borne in mind since the assignment

given to a judge who is due to demit office would have to

be entrusted to another Bench when the vacancy arises.

These are some of the considerations 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’

9

. There

is no specific provision relating thereto either in the Constitution

or even in any other law. The legal position contained in the

aforesaid judgments is based upon healthy practice and sound

conventions which have been developed over a period of time

and that stands engrafted in the Supreme Court Rules. In fact, it

9Article 124 of the Constitution merely says that there shall be a Supreme Court of India

consisting of Chief Justice of India and thirty other Judges.

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is dominated by two stereo-types. One, perpetuated by the

common belief and widely endorsed and accepted by all the

stakeholders, is that the ‘Chief Justice’ occupies the role of ‘first

among equals’. The phrase ‘among equals’ is generally relatable

to the judicial function designed to emphasise the fact that voices

of the members of a particular Bench, which may include ‘Chief

Justice’, are given equal weight and that in deciding cases, the

opinion of the ‘Chief Justice’ also carries same weight and is no

different from those of other Members of the Bench. Thus, in a

given case, there is a possibility that the view of the ‘Chief

Justice’ may be a minority view and in that eventuality, the

outcome of case would be what majority decides. The word ‘first’

in the aforesaid expression signifies only the fact that the ‘Chief

Justice’ is the senior most Judge of the Court.

22.The second stereotype is that being the ‘Chief Justice’ and senior

most Judge of the Court, he is empowered to exercise

‘leadership’ on the Court. In this role, the ‘Chief Justice’ is

expected to be the spokesperson and representative of the

judiciary in its dealings with the Executive, Government and the

Community. For this purpose, the ‘Chief Justice’ has a general

responsibility to ensure that the Court promotes change and

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reform as appropriate. The judicial reforms, which is a continuing

process in order to ensure that there is real access to justice, also

becomes the moral responsibility of the ‘Chief Justice’. Such

reforms in the administration of justice are not limited to the

judicial aspects (i.e. how the cases need to be decided, case

management and court management, speedy disposal etc.) but

also include reforms on the administrative side of the legal

system as well. Procedural reforms and implementation thereof

is an integral part of the judicial reform. The ultimate purpose is

to dispense justice, which is the highest and noblest virtue.

Again, in this role, the ‘Chief Justice’ gets the authority and

responsibility for the administration of the Court, 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.

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(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 Article 145. Supreme Court Rules, 2013

which have been framed in exercise of such a power empowered

the Chief Justice to constitute the Benches and list particular

matters before such Benches. Similar powers are conferred

upon the Chief Justice of the High Courts in the Rules framed by

respective High Courts for regulating its procedure.

24.At the same time, the power of the ‘Chief Justice’ does not extend

to regulate the functioning of a particular Bench to decide cases

assigned to him once the cases are allocated to that Bench. A

Bench comprising of puisne Judges exercise its judicial function

without interference from others, including the ‘Chief Justice’, as it

is supposed to act according to law. Therefore, when a particular

matter is assigned to a particular Bench, that Bench acquires the

complete dominion over the case.

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25.From the aforesaid, it follows that the two most obvious functions

of the ‘Chief Justice’ are to exercise judicial power as a Judge of

the Court on equal footing as others, being ‘among equals’ and to

assume responsibility of the administration of the Court.

26.Keeping in mind these postulates and the ratio of the aforesaid

binding judgments, it is difficult to accept the argument of the

petitioner that the expression ‘Chief Justice’ is to be read as

‘Collegium’ consisting of five senior-most Judges, including the

Chief Justice. The judgments cited by learned senior counsel

appearing for the petitioner are in the context of Article 124 of the

Constitution wherein the expression ‘Chief Justice’ was read as

Collegium, after examining the Constitutional Scheme and the

objective behind such a provision meant for appointment of

Judges. The rationale provided in that context cannot be adopted

while interpreting Article 145 of the Constitution, the purpose

whereof is altogether different. We agree with the submission of

the learned Attorney General that the task of constitution of

Benches and allocation of specific cases to those Benches, can

more smoothly be performed by the Chief Justice and discharge

of such a function by the Collegium would be unworkable and

also lead to many practical difficulties.

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27.As already taken note of above, the basis of this argument is the

judgment of this Court in Second Judges’ case which laid the

foundation of the Collegium system for the 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 Supreme Court as well as the

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High Courts. It is also to be borne in mind that as far as the

Executive is concerned, it will have virtually no role in such

appointments, except the minimalist role specifically delineated in

the judgment. This kind of system which is devised for

appointment of Judges cannot be replicated when it comes to the

role of the Chief Justice as Master of Roster. We have to keep in

mind that the Chief Justice, as the head of the Supreme Court of

India, and the Chief Justices of the High Courts, have to perform

many other functions, on administrative side, in their capacities

as Chief Justices. Framing of the Roster and constituting the

Benches is one among them. In case the expression ‘Chief

Justice’ is to be interpreted as ‘Collegium’, it would be difficult to

have smooth day to day functioning of the Supreme Court, or for

that matter the High Courts. We have already reproduced above

that part of the discussion from the judgment in Asok Pande

which took note of various factors that are to be kept in mind for

preparing the Roster and indicating the constitution of Benches.

Moreover, when it comes to assigning the cases to a particular

Bench, it has to be undertaken by the Chief Justice on daily basis

in contrast with the meetings of the Collegium for the purpose of

appointment of Judges, which is infrequent. Thus, meeting of

Writ Petition (C) No. of 2018 Page 31 of 41

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Collegium for the purpose of assigning the cases to a particular

Bench on daily basis is clearly impracticable.

28.It is trite that ratio of a judgment is what it decides and not what

logically follows therefrom. The observations in the three

Judges’ case(s) are to be read in the context in which they are

rendered. Once that is kept in mind, we arrive at a conclusion

that the ratio of those judgments cannot be extended to read the

expression ‘Chief Justice’, wherever it occurs, to mean the

‘Collegium’ of the senior Judges.

29.The argument of the learned counsel for the petitioner that

function such as ‘framing the Roster’ and ‘listing of important and

sensitive matters’ are extremely crucial and cannot be left to the

sole discretion of the Chief Justice is also met in Asok Pande, in

the following manner:

“15. 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.

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

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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 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.”

30.In this entire scheme, it needs to be highlighted that the judiciary

is assigned a pivotal role under the Constitution. In a Constitution

Bench judgment rendered only a day before

10

in the case of

Government of NCT of Delhi v. Union of India & Another, the

role of the Court as final arbiter of the Constitution and upholder

of the rule of law is captured in the following words:

“4. This Court, being the final arbiter of the Constitution, in

such a situation, has to enter into the process of

interpretation with the new tools such as constitutional

pragmatism having due regard for sanctity of objectivity,

realization of the purpose in the truest sense by constantly

reminding one and all about the sacrosanctity of

democratic structure as envisaged by our Constitution,

elevation of the precepts of constitutional trust and morality,

and the solemn idea of decentralization of power and, we

must say, the ideas knock at the door to be invited. The

compulsive invitation is the warrant to sustain the values of

democracy in the prescribed framework of law. The aim is

to see that in the ultimate eventuate, the rule of law

10Judgment dated July 4, 2018 in Civil Appeal No. 2357 of 2017 titled Government of NCT of Delhi

v. Union of India & Another with other connected appeals.

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prevails and the interpretative process allows the said idea

its deserved space, for when the rule of law is conferred its

due status in the sphere of democracy, it assumes

significant credibility.

5. We would like to call such a method of understanding

“confluence of the idea and spirit of the Constitution”, for it

celebrates the grand idea behind the constitutional

structure founded on the cherished values of democracy.”

31.The Constitution makers, thus, reposed great trust in the judiciary

by assigning it the powers of judicial review of not only the

administrative acts of the Government/Executive but even the

legislative acts of the Legislature. In the process, judiciary

discharges one of the most important functions, namely, the

administration of justice. It does so by upholding the rule of law

and, 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.

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32.Alexander M. Bickel had emphasised way back in 1962

11

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 Hamilton

12

:

“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

community. The legislature not only commands the purse,

but prescribes the rules by which the duties and rights of

every citizen are to be regulated. The judiciary, on the

contrary, has no influence over either the sword or the

purse; no direction either of the strength or of the wealth of

the society; and can take no active resolution whatever. It

may truly be said to have neither FORCE nor WILL, but

merely judgment; and must ultimately depend upon the aid

of the executive arm even for the efficacy of its judgments.”

33.The judiciary even without the sword or the purse, remains the

guardian of the Constitution. Its sole strength lies in the public

confidence and the trust. A.S. Anand, J. (as His Lordship then

was, later the Chief Justice of India) highlighted this aspect

(though in the context of contempt jurisdiction of the Court) in

State of Rajasthan v. Prakash Chand & Ors.

13

in the following

words:

“The virtue of humility in the Judges and a constant

awareness that investment of power in them is meant for

11in his book ‘The Least Dangerous Branch’

12in the 78

th

Federalist, “The Judges as Guardians of the Constitution”.

13(1998) 1 SCC 1

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use in public interest and to uphold the majesty of rule of

law, would to a large extent ensure self restraint in

discharge of all judicial functions and preserve the

independence of judiciary. It needs no emphasis to say that

all actions of a Judge must be judicious in character.

Erosion of credibility of the judiciary, in the public

mind, for whatever reasons, is greatest threat to the

independence of the judiciary. Eternal vigilance by the

Judges to guard against any such latent internal danger is,

therefore, necessary, lest we "suffer from self-inflicted

mortal wounds". We must remember that the Constitution

does not give unlimited powers to any one including the

Judge of all levels. The societal perception of Judges as

being detached and impartial referees is the greatest

strength of the judiciary and every member of the

judiciary must ensure that this perception does not

receive a set back consciously or unconsciously.

Authenticity of the judicial process rests on public

confidence and public confidence rests on legitimacy of

judicial process. Sources of legitimacy are in the

impersonal application by the Judge of recognised

objective principles which owe their existence to a system

as distinguished from subjective moods, predilections,

emotions and prejudices.”

34.We may also quote the following passage from S.P. Gupta (per

Pathak, J.):

“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,

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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 criticised. In this age of technology,

open society and liberal democracy coupled with varied nature of

cases raising complex issues which are decided by the Courts,

including ‘hard cases’ any outcome whereof may be susceptible

to criticism, as both views may appear to be equally strong. In

that sense, judiciary walks the tightrope of independence. It has

also become a regular feature that even laymen, who are

constitutionally illiterate, enter such debate and evaluate the

outcomes influenced by their emotions, rather than on legal or

constitutional principles.

37.The world is changing fast. However, the fundamental qualities

which the public seek in a Judge have remained the same, as

these are eternal verities, which will never change. These are

wisdom, patience, a sense of practical reality, fairness and

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balance, independence of mind and knowledge of law, moral

courage or fortitude, and a total commitment that justice should

be administered according to law. At the end of the day, it is the

virtue of righteousness, impartiality, objectivity and scholarship

which a Judge commands to ensure respectability to his

judgment.

38.In the aforesaid backdrop, role of the ‘Chief Justice’ as Master of

Roster also assumes much significance. Each ‘Chief Justice’

performs his role by consultation and consensus, after taking into

account various factors including individual Judges’ interests and

abilities, their specialisation in a particular area, their capacity to

handle particular type of cases and many other relevant

considerations. However, the exercise of such a power with

wisdom has to be left to the ‘Chief Justice’ who is given the

prerogative of the ‘Master of the Roster’.

39.Mr. Dave had referred to certain international practices, namely,

the practices adopted by the Apex Courts in other jurisdictions.

We may only record that the judicial systems in different countries

have different styles of functioning and the practices have been

developed in various countries keeping in view the structure of

the Courts

14

. Even the procedural characteristics of litigation are

14For example, in U.S., all Judge of the Supreme Court sit as a Court and not in Benches.

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different. Therefore, system prevalent and developed in one

jurisdiction cannot be mechanically adopted by judicial system in

other countries. At the same time, there is no harm in adopting

those healthy practices which have been developed in foreign

jurisdictions 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

Writ Petition (C) No. of 2018 Page 39 of 41

(arising out of Diary No. 12405 of 2018)

Justice Tun Mohamed Dzaiddin Abdullah, the then Chief Justice

of Malaysia

15

:

“As judges, we are used to hearing, marshalling and

evaluating evidence.

In fact, when it comes down to brass tacks, that is just what

we judges are perennially obliged to do throughout the

better part of our life on the Bench. Every decision we

make is momentous, for it touches the lives and fortunes of

other people.

Thus it is good, therefore from time to time, like today, and

the next three days, for us to take a hard look at ourselves

so as to ensure that it is a responsibility which we are

discharging.”

42.We conclude by extracting following message conveying deep

meaning, written in the ‘Introduction’ to the just released book

authored by eminent lawyer Fali S. Nariman

16

:

“Second: Institutions created by our Constitution, like the

Supreme Court, are, and will always remain, greater than

the men and women for the time being in-charge. And this

is why our Court will always remain ‘Hon’ble’ as is the

nine-judge Bench of the-more-than-two-hundred-year-old

Supreme Court of the United States, which is reminded by

the Clerk of the Court on each day that it sits (proclaimed in

a loud voice before the justices take their seats): “God save

the United States and this Hon’ble Court”, and

Third: As for the men and women on the Bench for the time

being in-charge, one can almost hear them say (as

Edmund Burke had said in an election speech way back in

1780):

15Taken from Welcoming Address given by him in a workshop on “judicial accountability”

organised by Commonwealth Lawyers’ Association in Kuala Lumpur in April, 2002.

16God Save the Hon’ble Supreme Court and Other Opinions.

Writ Petition (C) No. of 2018 Page 40 of 41

(arising out of Diary No. 12405 of 2018)

“Applaud us when we run; console us when we fall; cheer

us when we recover; but let us pass on-for God’s sake, let

us pass on”.

43.We, thus, dispose of the writ petition without any further

directions.

.............................................J.

(A.K. SIKRI)

NEW DELHI;

JULY 06, 2018.

Writ Petition (C) No. of 2018 Page 41 of 41

(arising out of Diary No. 12405 of 2018)

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 789 OF 2018

(ARISING OUT OF DIARY NO. 12405 OF 2018)

SHANTI BHUSHAN … PETITIONER

VERSUS

SUPREME COURT OF INDIA

THROUGH ITS REGISTRAR & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

I have advantage of going through the draft

judgment of my esteemed brother Justice A.K. Sikri. I

entirely agree with the opinion expressed by my brother,

however, looking to the importance of the issues raised in

the writ petition I also express my views on the subject.

2.The petitioner, a senior advocate of this Court and

former Law Minister has filed this writ petition under

Article 32 of the Constitution praying for following reliefs:-

2

“a) 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 listing of matters must strictly adhere to

the Supreme Court Rules, 2013 and Handbook

on Practice and Procedure and Office

Procedure, subject to the following

clarification:

i) The words 'Chief Justice of India'

must be deemed to mean a collegium

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 na-

ture 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 na-

ture of prohibition or any other appropriate

writ, order or direction prohibiting the Hon'ble

Chief Justice of India and concerned respon -

dents 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 mod-

3

ification 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 hear -

ing/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 inter-

ests of justice.”

3.The petitioner in the writ petition pleads that

although the Chief Justice is the master of roster and has

the authority to allocate cases to different

benches/judges of the Supreme Court, but however the

power to exercise such authority cannot be used in such

a manner as to assert any superior authority by the Chief

Justice. In this respect, it is relevant to reproduce the

pleading of the petitioner in Paragraph 4 and Paragraph 6

of the writ petition, which is to the following effect:-

“4.It is a principle that has been settled by

judicial pronouncements and conventions of

the Hon’ble Supreme Court that the Chief

4

Justice of India is the master of the roster and

has the authority to allocate cases to different

benches/judges of the Supreme Court.

Adherence to this principle is essential to

maintain judicial discipline and decorum and

for the proper and efficient functioning of the

Court. However, the power to exercise such

authority cannot be used in such a manner as

to assert any superior authority by the Chief

Justice. It is also a well settled principle of

jurisprudence that the Chief Justice is only the

first among equals.

6. A roster declares what work is assigned to

High Court and Supreme Court Judges. ‘Master

of the Roster’ refers to the privilege of the

Chief Justice to constitute Benches to hear

cases. It is a pre-requisite that this power

must be exercised in a manner is that fair, just

and transparent and in keeping with the high

standards of integrity desired from the office

of a Chief Justice of India.”

4.The petitioner refers to a Three Judge Bench

judgment in State of Rajasthan Vs. Prakash Chand &

Ors., (1998) 1 SCC 1, wherein it was held that the Chief

Justice of the High Court is the master of the roster and

he alone has the prerogative to constitute the benches of

the court and allocate cases to the benches so

constituted. It is further pleaded in the writ petition that

the writ petition raises questions relating to the

5

functioning of the Registry of the Supreme Court and the

powers exercised by the Chief Justice 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.

5.Shri Dushyant Dave, learned senior counsel assisted

by Shri Prashant Bhushan, appearing for the petitioner

submits that constitution of benches being a sensitive

6

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

Supreme Court and the High Court should be made by a

collegium consisting of Chief Justice and four senior

judges, the same interpretation or principle should be

applied while finalizing the roster. Formulation of roster

should be entrusted to collegium consisting of Chief

Justice and four senior judges. Learned senior counsel

submits that the petitioner is not making any allegation

and only endeavour is to devise a system so that there

be no handpicking of cases. This Court while

interpreting Article 124 has relied on collective wisdom

while making recommendation for appointment of

judges, the same interpretation should be applied in

exercise of power by Chief Justice while formulating the

roster. Alternatively, it is submitted that power to frame

roster be given to entire Court and the entire Court can

decide the principles for finalizing the roster. Learned

7

senior counsel for the petitioner has also referred to

various international practices, which is adopted in

different countries in respect of allocation of cases to

different benches.

6.Shri K.K. Venugopal, learned Attorney General

opposing the writ petition submits that under the

Constitution and the Rules framed thereunder, it is the

Chief Justice, who is contemplated to take decision

regarding allocation of cases and constitution of benches.

It is submitted by learned Attorney General that the

exercise of allocation of cases and framing of roster is an

exercise, which cannot be taken by multiple persons. He

submits that there can be difference in members of

collegium regarding allocation of cases, which shall

hamper the smooth functioning of the Court. He submits

that exercise of roster is entirely different from exercise of

making recommendation for appointment of judges of this

Court. By participation of other judges, there is likelihood

that conflict of interest. Multiplicity of judges forming the

8

roster will lead to chaos, hampering the smooth

functioning of the Court. Learned Attorney General has

referred to various judgments of this Court for the

proposition that Chief Justice has been held to be master

of roster and it is sole prerogative of Chief Justice to

constitute benches and allocate cases to different

benches for smooth functioning of the Court.

Shri Dushyant Dave replying the submission of

learned Attorney General submits that the objective of

writ petition is to evolve a transparent 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.

7.We have considered the submissions of the learned

counsel for the parties and have perused the records.

8.Before we consider the rival submissions raised by

the learned counsel for the parties, it is relevant to notice

9

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 history of Courts in this country.

9.Section 200(1) of the 1935 Act, which provided for

establishment and constitution of Federal Court was to

the following effect:-

“200.-(1) There shall be a Federal Court

consisting of a Chief Justice of India and such

number of other judges as His Majesty may

deem necessary, but unless and until an

address has been presented by the Federal

Legislature to the Governor-General for

submission to His Majesty praying for an

increase in the number of judges, the number

of puisne judges shall not exceed six.”

10

10.Section 214 of the 1935 Act provided for rules of the

Court etc., which was as follows:

“214.-(1) The Federal Court may from time to

court, with the approval of the

Governor-General in his discretion, make

rules of court for regulating generally the

practice and procedure of the court, including

rules as to the persons practising before the

court, as to the time within which appeals to

the court are to be entered, as to the costs of

and incidental to any proceedings in the

court, and as to the fees to be charged in

respect of proceedings therein, and in

particular may make rules providing for the

summary determination of any appeal which

appears to the court to be frivolous or

vexatious or brought for the purpose of delay.

(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

11

sit for any purpose.

(4) No judgment shall be delivered by the

Federal Court save in open court and with the

concurrence of a majority of the judges

present at the hearing of the case, but

nothing in this subsection shall be deemed to

prevent a judge who does not concur from

delivering a dissenting judgment.

(5) All proceedings in the Federal Court shall

be in the English language.”

11.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.

12.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

12

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

constitution of Division Courts and Powers of the Single

Judge. Rules 1 and 2 of Order VI are as follows:-

“1. Subject to the other provisions of these

rules every cause, appeal or matter shall be

heard by a Bench consisting of not less than

two Judges nominated by the Chief Justice.

2. Where in the course of the hearing of any

cause, appeal or other proceeding, the Bench

considers that the matter should be dealt

with by a larger Bench, it shall refer the

matter to the Chief Justice, who shall

thereupon constitute such a Bench for the

hearing of it.”

13.The Chief Justice of India of the erstwhile Federal

Court and the Chief Justice of India as per the Constitution

13

of India has been exercising the jurisdiction of formulating

the roster for convenient distribution of Court's business

and constituting the benches from time to time.

14.This Court had also occasion to consider time and

again the nature and extent of the powers of the Chief

Justice of India. For the purposes of this case, it is useful

to refer to few of the precedents in the above respect. A

Three Judge Bench of this Court in State of Rajasthan

Vs. Prakash Chand and Others, (1998) 1 SCC 1, which

judgment has also been referred to and relied on by the

petitioner, had elaborately considered the subject in

issue. In regard to the power of the Chief Justice in regard

to constitution of benches, this Court after referring to

Para 44 of Rajasthan High Court Ordinance, 1949 as well

as Rule 54 of the Rules of the High Court of Judicature for

Rajasthan laid down following in Paragraph 10 :-

”10. A careful reading of the aforesaid provi-

sions of the Ordinance and Rule 54 (supra)

shows that the administrative control of the

High Court vests in the Chief Justice of the

High Court alone and that it is his prerogative

to distribute business of the High Court both

14

judicial and administrative. He alone, has the

right and power to decide how the Benches of

the High Court are to be constituted: which

Judge is to sit alone and which cases he can

and is required to hear as also as to which

Judges shall constitute a Division Bench and

what work those Benches shall do. In other

words the Judges of the High Court can sit

alone or in Division Benches and do such

work only as may be allotted to them by an

order of or in accordance with the directions

of the Chief Justice. That necessarily means

that it is not within the competence or do-

main 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 di-

rections 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 re -

quires to be listed before it for valid reasons,

it should direct the Registry to obtain appro-

priate 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 administra-

tive 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

15

Justice as is borne out from Rule 73, which

reads thus:

“73. Daily Cause List.—The Registrar

shall subject to such directions as the

Chief Justice may give from time to

time cause to be prepared for each

day on which the Court sits, a list of

cases which may be heard by the

different Benches of the Court. The

list shall also state the hour at which

and the room in which each Bench

shall sit. Such list shall be known as

the Day’s List.”

15.This Court in the above case has also referred to

earlier judgments of this Court in Inder Mani and

Others Vs. Matheshwari Prasad and Others, (1996)

6 SCC 587 and different judgments rendered by different

High Courts reiterating the same principles after referring

to various judgments. After approving the view taken by

different High Courts in various cases, following was laid

down in Paragraph 23:-

“23. The above opinion appeals to us and we

agree with it. Therefore, from a review of the

statutory provisions and the cases on the

subject as rightly decided by various High

Courts, to which reference has been made by

us, it follows that no Judge or a Bench of

16

Judges can assume jurisdiction in a case

pending in the High Court unless the case is

allotted to him or them by the Chief Justice.

Strict adherence of this procedure is essential

for maintaining judicial discipline and proper

functioning of the Court. No departure from it

can be permitted. If every Judge of a High

Court starts picking and choosing cases for

disposal by him, the discipline in the High

Court would be the casualty and the adminis-

tration of justice would suffer. No legal sys-

tem can permit machinery of the Court to col-

lapse…………………”

16.This Court has recorded its conclusion in Para 59,

which is to the following effect:-

“59. From the preceding discussion the fol-

lowing 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 consti-

tute 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 Jus-

tice or under his directions.

17

(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 Divi-

sion Bench can be split up by the Judges con-

stituting 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 direc-

tions to the Registry for listing any case be-

fore him or them which runs counter to the

directions given by the Chief Justice.

Xxxxxxxxxxxx”

17.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

Another Vs. Raghubir Singh (Dead) By LRs. Etc.,

18

(1989) 2 SCC 754 ¸ a Constitution Bench of this Court

noticed that as a general rule of practice and

convenience, the Court should sit in Divisions and each

Division being constituted of Judges whose number may

be determined by the exigencies of judicial need, by the

nature of the case including any statutory mandate

relative thereto, and by such other considerations which

the Chief Justice, in whom such authority devolves by

convention. In Paragraph 27, following has been

observed:-

“………………………… ..It cannot be doubted

that in order to promote consistency and cer-

tainty in the law laid down by a superior

Court, the ideal condition would be that the

entire Court should sit in all cases to decide

questions of law, and for that reason the

Supreme Court of the United States does so.

But having regard to the volume of work de-

manding the attention of the Court, it has

been found necessary in India as a general

rule of practice and convenience that the

Court should sit in Divisions, each Division be-

ing constituted of Judges whose number may

be determined by the exigencies of judicial

need, by the nature of the case including any

statutory mandate relative thereto, and by

such other considerations which the Chief Jus-

tice, in whom such authority devolves by con-

vention, may find most

appropriate……………………………”

19

18.In D.C. Saxena Vs. Hon’ble The Chief Justice of

India, (1996) 5 SCC 216, this Court held that it is the

Chief Justice's prerogative to constitute benches and

assign the judicial work and the judicial business would

not hinge on the whim of a litigant. In Paragraph 26,

following has been laid down:-

“26. …………………………. The Chief Justice’s

prerogative to constitute benches and assign-

ment of judicial business would not hinge on

the whim of a litigant.”

19.This Court further in State of Uttar Pradesh and

Others Vs. Neeraj Chaubey and Others, (2010) 10

SCC 320 held that power of Chief Justice of allocation of

business of the High Court flows not only from the

provisions contained in sub-section (3) of Section 51 of

the States Reorganisation Act, 1956, but inheres in him in

the very nature of things. Following was observed in Para

9 :-

“9. ………………If the Judges were free to

choose their jurisdiction or any choice was

given to them to do whatever case they may

20

like to hear and decide, the machinery of the

Court would collapse and the judicial work of

the Court would cease by generation of inter-

nal strife on account of hankering for a partic-

ular jurisdiction or a particular

case………………………”

20. 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.

21.Now, we come to the submission which has been put

forth by Shri Dushyant Dave forcefully that Chief Justice of

21

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 argument

takes sustenance from the Constitution Bench judgment

of this Court. In Judges case i.e. S.P. Gupta Vs. Union of

India, (1981) Supp. SC 87 , which was subsequently

elaborated and clarified by second Judges case i.e.

Supreme Court Advocates on Record Association

and Others Vs. Union of India, (1993) 4 SCC 441 and

third Judges case i.e. Special Reference No. 1 of 1998,

(1998) 7 SCC 739 . He submits that when Chief Justice

has been read as collegium in exercise of his

constitutional functions of making recommendation for

appointment of judges, the same interpretation be put on

the word “Chief Justice” while he exercises power of

allocating business of the Court. It is useful to refer to

judgment of Seven Judges Bench of this Court in S.P.

Gupta (supra) to recapitulate the law as laid down in the

above cases. This Court had occasion to consider Article

124(2) of the Constitution, which contains provision for

22

appointment of judges of the Supreme Court and of the

High Courts. Article 124(2) is as follows:-

124(2). Every Judge of the Supreme Court

shall be appointed by the President by war-

rant under his hand and seal after consulta-

tion with such of the Judges of the Supreme

Court and of the High Courts in the States as

the President may deem necessary for the

purpose and shall hold office until he attains

the age of sixty five years:

Provided that in the case of appointment

of a Judge other than the Chief Justice, the

Chief Justice of India shall always be con-

sulted:

(a) a Judge may, by writing under his hand

addressed to the President, resign his office;

(b) a Judge may be removed from his office in

the manner provided in clause (4).

22.Justice Bhagwati, speaking for majority in S.P.

Gupta’s case (supra) while interpreting Article 124(2)

laid down following in Paragraph 31:-

“31. ……………The petitioners contended

that the Central Government may, if it thinks

fit, consult one or more of the Judges of the

Supreme Court and of the High Courts or it

may not consult any and where it does not,

the Chief Justice of India will be the only con-

stitutional functionary required to be con-

sulted and in such a case the Central Govern-

ment must accept the opinion of the Chief

23

Justice of India as binding upon it. We do not

think this argument is well founded. In the

first place it is not justified by the plain lan-

guage of clause (2) of Article 124. This clause

clearly provides for consultation as a manda-

tory 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 nec -

essary” 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 con-

sultation 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 be-

fore exercising the power of appointment

conferred by clause (2) of Article 124. This re-

quirement is prescribed obviously because

the Constitution-makers did not think it desir-

able that one person alone, howsoever high

and eminent he may be, should have a pre -

dominant 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 misconception that it is

not a mandatory but only an optional provi-

sion. The result is that the Chief Justice of In-

dia alone is consulted in the matter of ap-

pointment of a Supreme Court Judge and

largely as a result of a healthy practice fol-

lowed through the years, the recommenda -

tion of the Chief Justice of India is ordinarily

accepted by the Central Government, the

24

consequence being that in a highly important

matter like the appointment of a Supreme

Court Judge, it is the decision of the Chief Jus-

tice of India which is ordinarily, for all practi-

cal purposes final. But, as it happens, there

are no criteria laid down or evolved to guide

the Chief Justice in this respect nor is there

any consultation with wider interests. This is,

to our mind, not a very satisfactory mode of

appointment, because wisdom and experi -

ence demand that no power should be vested

in a single individual howsoever high and

great he may be and howsoever honest and

well meaning. We are all human beings with

our own likes and dislikes, our own predelic-

tions and prejudices and our mind is not so

comprehensive as to be able to take in all as-

pects of a question at one time and moreover

sometimes, the information on which we base

our judgments may be incorrect or inade -

quate and our judgment may also sometimes

be imperceptibly influenced by extraneous or

irrelevant considerations. It may also be no-

ticed that it is not difficult to find reasons to

justify what our bias or predeliction or inclina-

tion 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 indi-

vidual, howsoever high or important may be

the office which he is occupying. There must

be checks and controls in the exercise of ev-

ery 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 indi-

vidual. That is perhaps the reason why the

Constitution-makers introduced the require-

ment in clause (2) of Article 124 that one or

more Judges out of the Judges of the

Supreme Court and of the High Courts should

25

be consulted in making appointment of a

Supreme Court Judge. But even with this pro-

vision, we do not think that the safeguard is

adequate because it is left to the Central

Government to select any one or more of the

Judges of the Supreme Court and of the High

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 rec-

ommending 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 knowl -

edge of the persons who may be fit for ap -

pointment on the Bench and of qualities re-

quired for appointment and this last require-

ment 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 signifi-

cance and meaning for the deprived and ex -

ploited sections of

humanity…………………………”

23.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 con-

ferment of the discretionary authority not to

one individual but to a body of men, requiring

26

the final decision to be taken after full inter-

action and effective consultation between

themselves, to ensure projection of all likely

points of view and procuring the element of

plurality in the final decision with the benefit

of the collective wisdom of all those involved

in the process. The conferment of this discre-

tionary authority in the highest functionaries

is a further check in the same direction. The

constitutional scheme excludes the scope of

absolute power in any one individual. Such a

construction of the provisions also, therefore,

matches the constitutional scheme and the

constitutional purpose for which these provi-

sions were enacted.

478. This opinion has to be formed in a prag-

matic 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 se-

niormost Judges of the Supreme Court. The

Chief Justice of India is also expected to as-

certain 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 oth -

erwise. Article 124(2) is an indication that as-

certainment of the views of some other

Judges of the Supreme Court is requisite. The

object underlying Article 124(2) is achieved in

this manner as the Chief Justice of India con-

sults them for the formation of his opinion.

This provision in Article 124(2) is the basis for

the existing convention which requires the

Chief Justice of India to consult some Judges

27

of the Supreme Court before making his rec-

ommendation. This ensures that the opinion

of the Chief Justice of India is not merely his

individual opinion, but an opinion formed col-

lectively by a body of men at the apex level

in the judiciary.

xxxxxxxxxxxxxxxxxxxxx”

24. In Third Judges case, Special Reference No. 1 of

1998, (1998) 7 SCC 739 , approving the construction as

was put by this Court in Second Judges case, Justice S.P.

Bharucha, as he then was, in Para 160 held that

collegium should consist of the Chief Justice of India and

four senior most puisne judges of the Supreme Court. In

Para 44, following answers were recorded:-

“44. The questions posed by the Reference

are now answered, but we should emphasise

that the answers should be read in conjunc-

tion 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 consulta-

tion 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.

28

xxxxxxxxxxxxxxx

3. The Chief Justice of India must make a rec-

ommendation to appoint a Judge of the

Supreme Court and to transfer a Chief Justice

or puisne Judge of a High Court in consulta-

tion with the four seniormost puisne Judges of

the Supreme Court. Insofar as an appoint -

ment to the High Court is concerned, the rec-

ommendation must be made in consultation

with the two seniormost 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 recom-

mended for appointment.”

25.The word “Chief Justice” in Article 124 was read as

collegium in Second and Third Judges case looking to the

constitutional scheme and constitutional objective as

perceived by the above provision. Article 124(2)

expresses constitutional provision of consultation by the

President in such of judges of Supreme Court and the

High Courts, as the President may deem necessary.

26.The proviso contains specific requirement of

29

consultation with the Chief Justice of India in case of

appointment of judges other than the Chief Justice.

Article 124 reveals thus two necessary ingredients

regarding consultation, i.e. (i) Chief Justice of India shall

always be consulted in case of appointment of judges

other than the Chief Justice; (ii) the President shall make

appointment after consultation with such of the judges of

the Supreme Court and of the High Courts in the States as

the President may deem necessary. In addition to

consultation with the Chief Justice of India, consultation

with other judges was specifically made part of the

Constitutional scheme. This Court in Second Judges case

and Third Judges Case taking note of the above

constitutional scheme has read the word "Chief Justice" as

collegium. Thus, the reason for reading the word "Chief

Justice" as collegium in Article 124 has constitutional

basis as elaborated in Second Judges case and Third

Judges Case.

27.With regard to procedure and practice of Supreme

Court, Article 145 empowers the Supreme Court to frame

30

rules with the approval of the President. The word

practice and procedure of the Court are wide enough to

include practice and procedure relating to preparation of

roster and allocation of cases. The Rules framed by

Supreme Court under Article 145 specifically refers the

Chief Justice in Chapter VI as noted above, the Chief

Justice, who is to nominate the bench for hearing every

case, appeal or matter. There is no indication in any of the

constitutional provisions or rules framed thereunder that

for allocation of cases and formation of benches, Chief

Justice should be read as collegium. For reading Chief

Justice as collegium, under Article 124, there was a

constitutional basis as observed above. This Court had

also on several occasions, noticed and expressed reasons

for holding that it is the only prerogative of the Chief

Justice to allocate cases and nominate the bench. This

Court in State of Uttar Pradesh and others Vs.

Neeraj Chaubey and Others (supra) has made

following weighty observations:-

“9. ………………If the Judges were free to

choose their jurisdiction or any choice was

31

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 inter-

nal strife on account of hankering for a partic-

ular jurisdiction or a particular

case………………………”

28.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.

29.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

Constitution which provides:

"130. Seat of Supreme Court.- The

32

Supreme Court shall sit in Delhi or in

such other place or places, as the

Chief Justice of India may, with the

approval of the President, from time to

time, appoint.”

He has further referred to Article 146 which provides

that the appointments of officers and servants of the

Supreme Court shall be made by the Chief Justice of India

or such other Judge or officer of the Court as he may

direct. He has referred to sub-clause (2) of Article 146,

which empowered the Chief Justice of India or some other

Judge or officer of the Court authorised by the Chief

Justice of India to make rules regarding conditions of

service of officers and servants of the Supreme Court

subject to provision of any law made by the President.

There is no doubt that above provision of the Constitution

provides for the Chief Justice to exercise particular

powers.

30.The submission that Constitution does not

specifically mention Chief Justice to exercise power of

allocation of cases and constitution of Benches, hence,

Chief Justice is not empowered to do the same, is not a

33

valid submission. Under the constitutional scheme

itself as contained in Article 145, the practice and

procedure of the Supreme Court is to be regulated by the

rules made by the Supreme Court with approval of the

President.

31.As noted above, rules framed under Article 145

specifically empower the Chief Justice to nominate

Benches for hearing cases or appeal. Non-containing of

any specific provision in the Constitution empowering the

Chief Justice to frame the roster to allocate the cases is

inconsequential since the entire subject was to be

covered by rules made under Article 145.

32.In considering the submissions raised in this case,

we are reminded of prophetic words of Mr. Justice Holmes

in Northern Securities Co. v. United States, 48

LAWYERS' EDITION U.S. 196 (1903). Holmes, J. said:

"Great cases, like hard cases, make

bad law. For great cases are called

great, not by reason of their real

importance in shaping the law of the

future, but because of some accident of

immediate overwhelming interest

which appeals to the feelings and

distorts the judgment. These

34

immediate interests exercise a kind of

hydraulic pressure which makes what

previously was clear seem doubtful,

and before which even well settled

principles of law will bend.”

33.Our views as expressed above are fortified by a

recent Constitution Bench judgment of this Court in

Campaign for Judicial Accountability and Reforms v. Union

of India & 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 Pv. ande Supreme Court India

through its Registrar and Ors., (2018) 5 SCC Scale 481.

34.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

35

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.

35.In so far as submission made by Shri Dave that in

allocation and listing of cases the Supreme Court Rules,

2013 have to be followed, no exception can be taken to

the above submission. When the statutory rules are

framed the entire business of the Court which is covered

by the Rules has to be dealt accordingly.

36.Law settled by this Court in large number of cases

as noticed above as well as judgments of three-Judge

Bench and Constitution Benches noted above are

binding on us and settled law cannot be unsettled on the

premise on which the entire writ petition is founded.

37.Shri Dave during his submission has also referred to

the handbook on “practice and procedure and office

procedure (2017)”. The handbook is a compilation of

36

practice and procedure and office procedure for guidance

of Registry. He has referred to Chapter V – Powers, Duties

and Functions of the Registrar, Chapter VI – Roster,

Chapter XIII – Listing of Cases. The above handbook is a

written guide for smooth transaction of the business of

the Court. Various instructions enumerated in different

Chapters provide for the conduct and business of the

Court in orderly manner with certainty, there cannot be

any dispute that when a procedure is laid down to be

followed by officials of the Supreme Court, all business is

to be transacted in the said manner. As noted above, for

the purposes of this case, we need not dwell into listing

of some cases as enumerated in the writ petition.

Learned counsel for the petitioner candidly submitted

that petitioner is not questioning any order or judgment

referred to in the writ petition. The endeavour of the writ

petitioner is to find out an appropriate procedure for

proper and fair distribution of cases and constitution of

Benches.

38.Learned counsel for the petitioner has also referred

37

to and relied on various international practices. During

the submission he has referred to practices pertaining to

case assignment in United Kingdom Supreme Court, High

Court of Australia, Supreme Court of Canada and the

practice in United States Supreme Court. The practices

and function of each Court are different which has been

evolved by time looking to particular background and set

of facts. The practice of a Court ripens into a convention

by passage of time and rich heritage of conventions are

time tested which is followed by different Courts. The

conventions and practice of the Supreme 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

38

this Court.

39.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.

40.Further, handbook on practice and procedure and

office procedure also laid down sufficient guidelines and

elaboration of the procedure which is to be followed in

this Court. Thus, for transaction of business of the Court,

there are elaborate rules and procedure and it cannot be

said that procedure and practice of the Court is unguided

and without any criteria.

41.We are, however, not unconscious of the fact that

39

working of any system is a continuous process and each

and every organisation endeavours to improve the

working of its system suitable to circumstances and the

need. Improvement of functioning is always a goal of

every system and all organisations endeavour to improve

the system, which is always a welcome steps. The

Supreme Court cannot be an exception to above

objective and goal.

42.Before we close, we remind ourselves of following

weighty words of Venkataramiah, J. in Judges' case:

"1268. ........We are made to realise

that we are all mortals with all the

human frailties and that only a few

know in this world the truth behind the

following statement of Michel De

Montaigne: “Were I not to follow the

straight road for its straightness, I

should follow it for having found by

experience that in the end it is

commonly the happiest and the most

useful track”. .............................But if

the judiciary should be really

independent something more is

necessary and that we have to seek in

the Judge himself and not outside. A

Judge should be independent of

himself. A Judge is a human being who

is a bundle of passions and prejudices,

40

likes and dislikes, affection and ill will,

hatred and contempt and fear and

recklessness. In order to be a

successful Judge these elements

should be curbed and kept under

restraint and that is possible only by

education, training, continued practice

and cultivation of a sense of humility

and dedication to duty. These curbs

can neither be bought in the market

nor injected into human system by the

written or unwritten laws. If these

things are there even if any of the

protective measures provided by the

Constitution and the laws go the

independence of the judiciary will not

suffer. But with all these measures

being there still a Judge may not be

independent. It is the inner strength of

Judges alone that can save the

judiciary. The life of a Judge does not

really call for great acts of

self-sacrifice; but it does insist upon

small acts of self-denial almost every

day. The following sloka explains the

true traits of men with discretion which

all Judges should possess:

ननिन्दन्ततु निनीनतननिपतुणणा यनद वणा स्ततुवन्ततु

लक्ष्मनीमीः समणानवशततु गच्छततु वणा यथथेष्टम

अदद्यैव वणा मरणमस्ततु यतुगणान्तरथे वणा

न्यणाययणात्पथमीः प्रनवचलनन्त पददं नि धनीरणामीः

41

[Let men trained in ethics or morality,

insult or praise; let lakshmi (wealth)

accumulate or vanish as she likes; let

death come today itself or at the end

of a yuga (millennium), men with

discretion will not deflect from the

path of rectitude.)”

43.The writ petition is disposed of with the observations

as made above.

…..............................J.

NEW DELHI, ( ASHOK BHUSHAN )

JULY 06, 2018.