As rightly observed by Simone de Beauvoir “Justice can never be done amid injustice.”
Introduction
The practice of ‘Master of Roster’ is prevailing in the Supreme Courts and High Courts for the constitution of benches. This is a sui generis power, which can only be exercised by the Chief Justice of the Supreme Court and High Courts. The Oxford Dictionary defines ‘Roster’ as ‘a list of people’s names and the tasks they are assigned to do at a specific time.’ Being the master denotes the administrative powers of the Chief Justice for the court’s functioning, which includes the number of judges on a bench, constituting benches for allocation of cases, listing of cases, etc. It vests colossal powers in the hands of one entity. It opens room for the Chief Justice to use his complete discretion to decide on such matters, as there are no checks and balances to fence such usage of power. In countries such as India, this gives rise to a complex set of problems.
Constitutional Conscience & the Master of Roster
In a historic movement, the practice of Master of Roster was abrogated by the Apex Court of our neighbouring country, Pakistan. The Supreme Court of Pakistan refused to entertain petitions challenging the Supreme Court (Practice and Procedure) Act, 2023 [1] which abolished the opaque system of ‘Master of Roster’ observing it to be against the principles of democracy and transparency. It made the power of allocating cases of the chief justice obsolete and established a collegium-like system to decide on allocation.[2] Notably, he referred to the word ‘master’ as offensive as it portrays a sort of servitude, which is anti-democratic per se. History stands testimony to the fact that whenever power got concentrated in the hands of one, it led to disastrous consequences that would further affect the people’s confidence in the judiciary and the integrity of the judiciary itself. In the Indian context, the origin of the term master of the roster can be traced back to the case of the State of Maharashtra v. Narayana Shamrao[3]. Our constitution framers did not wish to vest such humongous powers in the hands of a single entity. Section 214 (3)[4] of The Government of India Act, 1935 entailed – “…..3) Subject to the provision of any rules of the 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.” Such a section was deliberately omitted from our constitution to maintain a democratic regimentation of case allocation by the Apex court. Hence, this particular right of the Chief Justice cannot be considered to be directly sourced from the articles of the Constitution.[5]
According to the principle of collegiality, India’s constitution deems all judges equal. But the Chief Justice is the ‘first among equals’ and is treated as the ‘master of roster.’ For a long time, this system has been criticized for lacking transparency and concentration of power. Checks and balances lay down the foundation for a solid democracy, wherein every organ of the govt., namely the legislature, executive, and judiciary demands accountability from each other. In SP Gupta v. UOI[6], it was established by the Apex Court that regarding Article 124[7] Of the Constitution, when it comes to appointing judges in the apex court, ‘Chief Justice’ would mean a collegium m of judges and not the Chief Justice alone. The court said that we, human beings, have our likes, dislikes, and prejudices. More often than not, these considerations play a role in our decision-making, consciously or subconsciously. Based on this reasoning, a petition was filed in the Hon’ble Supreme Court in Shanti Bhushan v. Supreme Court of India wherein the Master of Roster system was challenged. Unfortunately, the Hon’ble Court drifted away from its logic as it dismissed the petition and upheld the constitutionality of the system. The amount of power that becomes concentrated in the hands of one is immense, which can lead to violations of the most basic principles of natural justice, under the guise of being ‘constitutional.’
Questionable application of the practice
“Nemo judex in causa sua” is a Latin legal principle that translates to “No one should be a judge in his cause.” As humans, it is our most basic tendency to have a bias toward ourselves, hence it’s pertinent that we do not get the opportunity to adjudge ourselves. An alleged breach of this principle happened when former Chief Justice Ranjan Gogoi became a judge in his case, where allegations of sexual harassment were levied on him by a former junior court officer.[8] Such instances reiterate the fact that this system provides a constitutional pathway for picking and choosing cases, even where there is an outright prejudice attached to the judgment. Most importantly the way it is recently being exercised does not align with the constitution or any legislation. The prime instance in this regard is the peculiar case of Ritu Chhabria. Where the Apex Court allowed an intra-court appeal against the order of a different bench passed in the same court having equal powers. What usually happens when a party is dissatisfied with a judgment, a review petition can be filed and the case is again heard by the same bench. But here a recall application was filed by the Union of India, and in a surprising turn of events, it was heard by a different bench altogether. It instructed subordinate courts to make bail decisions independently of the Ritu Chhabria ruling. Even though the Court of the CJI was not directly involved in the Division Bench’s decision, this action could be interpreted as subtly delaying that ruling.[9]
First among equals or First above equals?
The chances of misuse increase in the context of India because of the absence of checks that are ensured by other judges around the globe. In the US, the discretion of the Chief Justice is considerably reduced because all the nine judges sit together to hear the cases. There are no separate benches, the judges serve as a collective strength of the apex court. In the UK, the cap of judges is 12, and panels are constituted of five or more judges.[10] The Apex Court opined in the famous case of SP Gupta Vs. Union of India- No matter how high a position or office a person is holding, power must never be concentrated in the hands of one person. Power always runs the risk of being corrupt hence it must always be subjected to checks and balances. Hence, power must always be vested in plurality.[11] Being the master denotes the administrative powers of the Chief Justice for the court’s functioning, which includes the number of judges on a bench, constituting benches for allocation of cases, listing of cases, etc. The Hon’ble Supreme Court opined in the case of Maru Ram v Union of India, [12] that when a significant authority holds power, it is expected that they will exercise it responsibly and diligently, taking into account all relevant factors. Moreover, the greater the authority, the more prudent and meticulous their exercise of power is presumed to be, ensuring that all aspects of the matter are taken into consideration to make a holistic decision.
The Supreme Court confirmed in the case of Prakash Chand.[13], confirms that the Chief Justice holds the authority as the ‘master of the roster’ in administrative matters, specifically in constituting court benches and assigning cases to them. The Apex Court has practised this for years and hence, this practice has become a long-standing convention. The power of the Chief Justice becomes ultimate when it comes to the allocation of matters and the constitution of benches, but this power should not pave the way to the notion that the Chief Justice is ‘more capable’ than the other judges of the Supreme Court. Has been mentioned time and again – That the chief justice is first among the equals – but does this make us deduce an idea that can subtly point towards how being ‘first’ among equals endows the chief justice with some sort of extraordinary prowess in some sort overpowering the equals? The French principle of sentinel qui vive entails that the apex court is a vigilant guardian, which is always keeping an eye on the other organs of the govt., such that there is no possible breach of the constitutional conscience. But the question is, is it ensuring the same thing does not happen under its roof?
Conclusion
It is high time for the parliament to intervene by the way of making legislation to govern such a practice along with a grievance redressal mechanism against the doubtful working of Master of Roster. Possible solutions can be a collegium-like system or a random draw of lots for the allocation of cases. The Supreme Court consists of 34 judges, and when it comes to such a crucial task as the constitution of benches, it should not remain the unqualified prerogative of the Chief Justice. The representation of the other judges in the process becomes non-negotiable. The veil of opacity of ‘Master of Roster’ must come down as rightly said ‘Justice must not only be done, but seen to be done.’
Authors Name: Arisia Mandal and Manyata Sharma (Dharmashastra National Law University, Jabalpur)
References:
[1] Supreme Court (Practice and Procedure) Act, 2023, (Act 17 of 2023).
[2] Swarati Sabhapandit, ‘Abolition of Master of the Roster in Pakistan and lessons for India’ (The Leaflet, 13 FEBRUARY, 2024) <https://theleaflet.in/abolition-of-master-of-the-roster-in-pakistan-and-lessons-for-india/> accessed 02 March, 2024
[3] State of Maharashtra v. Narayan Shamrao Puranik and Others (1985) SCR (3) 358.
[4] The Government of India Act, 1935, art. 214, cl. 3.
[5] Mudit Ahuja , ‘Masters’ not ‘Master’ of the Roster: Empowering the Collegium’ (Law School Policy Review, 17 August, 2020) <https://lawschoolpolicyreview.com/2020/08/17/masters-not-master-of-the-roster-empowering-the-collegium/> accessed 27 February, 2024
[6] S.P. Gupta vs Union Of India & Anr (1982) (2) SCR 365.
[7] The Constitution of India, 1950, art. 124.
[8] Gautam Bhatia, ‘Master of the Roster’ (Indconlawphil.wordpress.com) <https://indconlawphil.wordpress.com/tag/master-of-the-roster/Gautam Bhatia> accessed 27 February 2024
[9] Aditya Manubarwala, ‘From Master of the Roster to Master of all Judges?’ THE HINDU, (30 May 2023) <https://www.thehindu.com/opinion/op-ed/from-master-of-the-roster-to-master-of-all-judges/article66907927.ece > accessed 03 March, 2024
[10] Gautam Bhatia, ‘Master and The Roster’ INDIAN EXPRESS, (15 January 2018) <https://indianexpress.com/article/opinion/columns/supreme-court-judiciary-chief-justice-jasti-chelameswar-master-and-the-roster-5024588/ > accessed 8 March, 2024
[11] Dr. Amrendra Kumar Ajit & Nishant Khatri, ‘Master Of Roster Or Judicial Superiority?’ LIVE LAW, (22 April 2023),< https://www.livelaw.in/articles/master-of-roster-or-judicial-superiority-226959 > accessed 05 March, 2024
[12] Maru Ram v Union of India (1981) 1 SCC 107.
[13] Prakash Chand, (1998) 1 SCC 1.
