Seniority Has No Bearing

Source: The Hitavada      Date: 16 Apr 2018 12:20:28











TRYING its utmost to end the recent controversy surrounding the Chief Justice of India’s power to assign the cases to his colleague judges, through its judgement delivered in the case - Asok Pande v. Supreme Court of India through its Registrar and Others, on April 11, 2018, a 3-judge Bench consisting of the Chief Justice Deepak Misra, Justice A. M. Khanwilkar and Justice Dr. D. Y. Chandrachud (who has authored the judgement) have stated that “seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgement 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 practice at the Bar.“To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence 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.

“The submissions made by the petitioner in regard to the constitution of benches in the High Courts are equally lacking in merit.” The Apex-Court emphatically disapproved of the insinuations sought to be made against judges drawn from the cadre of the district judiciary. The Constitution has made specific provision in Article 217(2) for appointment of judges to the High Court. Judges of the High Court drawn from the Bar or from those who have held judicial office for at least 10 years discharge the same functions as judges of the court upon their appointment under Article 217. To suggest that there is a distinction between the two is contrary to constitutional tenets.The Chartered High Courts at Allahabad, Bombay, Calcutta and Madras have a long history of over a hundred and fifty years. Each of them has marked its sesquicentennial. Many High Courts are not far behind in vintage. Some are of a recent origin. Over the course of their judicial history, High Courts have evolved conventions in matters governing practice and procedure. These conventions provide guidance to the Chief Justice in the allocation of work, including in the constitution of benches.

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 also indicates 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 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 HC 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 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. The Supreme Court was constituted in 1950. In the preparation of the roster and in the distribution of the judicial work, some of the conventions which are adopted in the High Courts are also relevant, subject to the modifications having regard to institutional requirements.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 in absence of such a procedure, the power will be exercised arbitrarily. In his capacity as a judge, the Chief Justice is primus inter pares: the first amongst equals.In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis (of its own kind). Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 re-affirms the position of the Chief Justice of India as the head of the Institution.
From an institutional perspective, the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of Benches, the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court.

The ultimate purpose behind the entrustment of authority to the Chief Justice is to 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 the 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. Finding no merit in it, the apex court dismissed the petition.