Supreme Court late in making roster public

The Supreme Court is late by over a decade in making its roster public which was why the four senior most judges of the apex court went public to declare that “democracy was in danger…Some wise men should not say several years from now that Justices Chelameshwar, Madan Lokur, Kurien Joseph and Ranjan Gogoi sold their souls.”

The Allahabad, Bombay, Delhi and Karnataka high courts have always displayed their rosters on their websites. And, well they might, because litigants must know who will decide their fate. All judges are equal but some judges like the 44th CJI J S Khehar were known to be intolerant of mistakes by lawyers who did not have as good a command over the English language as their privileged peers at the bar.

A roster declares what work is assigned to high court and supreme court judges because all cases are classified into categories and sub-categories with numerical codes assigned to them for easy identification such as service and election matters, arbitration, social justice matters and public interest petitions. The four seniormost judges levelled allegations against Chief Justice of India (CJI) Dipak Misra for allegedly exercising his discretionary powers in total opacity to assign certain sensitive matters to benches of his choice with predictable outcomes.

These predictable outcomes would mean that the Central government would not be embarrassed by decisions taken by these benches such as the judgment delivered by Chief Justice K M Joseph of the Uttarakhand high court, who quashed President’s rule in that state much to the discomfort of the Modi government. When his name was recommended for elevation to the Supreme Court by the apex court collegium, which comprises the four “rebel judges”, the Modi government sent back the recommendation.

The reason? The “seniority and regional representation norms have not been followed” declared the Union law ministry to obfuscate the fact that Chief Justice Joseph like Gopal Subramaniam before him, may embarrass the Modi government in the Supreme Court just as he embarrassed the government when he was the Uttarakhand chief justice. The senior lawyer, who represented Amit Shah in the Tulsiram Prajapati encounter case, Uday Umesh Lalit, was elevated to the Supreme Court. This does not mean he is not a good judge. But perhaps, Joseph is equally qualified.

Law students are taught that judges are apolitical in justice dispensation which is an ideal because even very good judges like Justice Chelameshwar of the Supreme Court was the youngest advocate general of Andhra Pradesh, for which he must have been grateful to the late chief minister N T Rama Rao. Justice Chelameshwar had accused his brother judge N V Ramanna of being close to chief minister N Chadrababu Naidu, who is the son-in-law of the late NTR. Justice Chelameshwar definitely knew what he was talking about because Justice Ramanna had objected to six advocates being elevated as judges of the Andhra Pradesh high court.

After agreeing to accept judgeship, lawyers’ names are circulated through the chief ministers of their respective states and then to the governors while a simultaneous Inteligence Bureau report is prepared on their professional and personal reputations. The entire file is then sent to the collegium of the Supreme Court, where a judge from their parent high court is asked to give his views. The judge in the Supreme Court may not know the incumbent judge very well, but what he states in writing is given weightage.

But to return to the roster, the CJI has to be transparent in assigning cases which cannot be left to his wisdom alone. More so, when he is assisted by the four collegium members. The CJI, being the first among equals, knows the background of his brother judges, which is why the four seniormost judges were vocal in protesting against CJI Dipak Misra assigning sensitive cases to junior judges who were not so randomly chosen.

The fact that Public Interest Litigations (PILs) continue to be heard by the CJI alone is problematic because although they constitute just one per cent of the cases heard in the apex court, these PILs expose high-level corruption, which was why the Supreme Court stopped all mining operations in Goa. Mine-owners own newspapers and colleges in Goa although it cannot be said that they own chief ministers.

Rather than leave the roster to the wisdom of the CJI, it would be better to have the seniormost judges collectively decide allotment of work which will obviate conflicting decisions such as the one delivered on February 8 by a three-judge bench led by Justice Arun Mishra in a land acquisition compensation case.

Justice Mishra’s judgment declared a previous 204 ruling of another three-judge bench of the then CJI R M Lodha, Madan Lokur and Kurien Joseph on the same subject as per incuriam, which means delivered without properly ascertaining the correct law based upon the facts placed before the court. These contradictory verdicts by benches of equal strength cause confusion and waste judicial time because a five-judge bench (called a Constitution bench) has to be set up to resolve the contradictions.

All these contradictions can be avoided by allowing the seniormost judges to decide what work is to be assigned to which particular bench so that justice is transparent which is what our founding fathers wanted.

The writer holds a PhD in Media Law and is  a journalist-cum-lawyer of the Bombay high court.