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 this

Court and enjoys credible reputation in the profession as well as

in  public,  has  filed  this  writ  petition  under  Article  32  of  the

Constitution of India.  In this writ petition, he seeks this Court to

clarify 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 India1 (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 Writ Petition (C)   No.                of 2018 Page 3 of 41 (arising out of Diary No. 12405 of 2018)

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 Another2 (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 Writ Petition (C)   No.                of 2018 Page 6 of 41 (arising out of Diary No. 12405 of 2018)

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 Writ Petition (C)   No.                of 2018 Page 7 of 41 (arising out of Diary No. 12405 of 2018)

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 Others3.  It was emphasised that the Constitution of

India has created an independent judiciary which is vested with

3 (1987) 4 SCC 611 Writ Petition (C)   No.                of 2018 Page 8 of 41 (arising out of Diary No. 12405 of 2018)

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.

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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.

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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.

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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.

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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 19984 (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:

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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 Writ Petition (C)   No.                of 2018 Page 13 of 41 (arising out of Diary No. 12405 of 2018)

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

Writ Petition (C)   No.                of 2018 Page 15 of 41 (arising out of Diary No. 12405 of 2018)

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

Writ Petition (C)   No.                of 2018 Page 16 of 41 (arising out of Diary No. 12405 of 2018)

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 Writ Petition (C)   No.                of 2018 Page 17 of 41 (arising out of Diary No. 12405 of 2018)

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 Writ Petition (C)   No.                of 2018 Page 18 of 41 (arising out of Diary No. 12405 of 2018)

“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?

7 Writ Petition (Civil) No. 147 of 2018 decided on April 11, 2018 Writ Petition (C)   No.                of 2018 Page 19 of 41 (arising out of Diary No. 12405 of 2018)

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

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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  Others8 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

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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

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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

9 Article  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 (arising out of Diary No. 12405 of 2018)

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

Writ Petition (C)   No.                of 2018 Page 32 of 41 (arising out of Diary No. 12405 of 2018)

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  before10 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

10 Judgment 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.

Writ Petition (C)   No.                of 2018 Page 33 of 41 (arising out of Diary No. 12405 of 2018)

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.   

Writ Petition (C)   No.                of 2018 Page 34 of 41 (arising out of Diary No. 12405 of 2018)

32. Alexander M. Bickel had emphasised way back in 196211 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 Hamilton12:

“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

11 in his book ‘The Least Dangerous Branch’ 12 in the 78th Federalist, “The Judges as Guardians of the Constitution”. 13 (1998) 1 SCC 1 Writ Petition (C)   No.                of 2018 Page 35 of 41 (arising out of Diary No. 12405 of 2018)

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,

Writ Petition (C)   No.                of 2018 Page 36 of 41 (arising out of Diary No. 12405 of 2018)

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 Writ Petition (C)   No.                of 2018 Page 37 of 41 (arising out of Diary No. 12405 of 2018)

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 Courts14.  Even the procedural characteristics of litigation are

14 For example, in U.S., all Judge of the Supreme Court sit as a Court and not in Benches. Writ Petition (C)   No.                of 2018 Page 38 of 41 (arising out of Diary No. 12405 of 2018)

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 Malaysia15:

“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. Nariman16:

“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):

15 Taken  from  Welcoming  Address  given  by  him  in  a  workshop  on  “judicial  accountability” organised by Commonwealth Lawyers’ Association in Kuala Lumpur in April, 2002.

16 God 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.