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Thursday, April 19, 2018

Ex-judges say: CJI Dipak Misra shouldn’t have heard case about his own powers

Justice A P Shah, former Chief Justice of Delhi High Court, said it was “inappropriate” on the part of the CJI to have heard a matter where the “issue involved is about the powers of the CJI”.

Written by Kaunain Sheriff M | New Delhi | Updated: April 12, 2018 4:50:04 am
supreme court crisis, CJI dipak misra, cji on allocation of cases, supreme court transparency, sc seeting up of benches, indian express, india news Chief Justice of India Dipak Misra. (Express Photo: Ganesh Shirsekar)

As the Supreme Court reiterated that the Chief Justice of India had the “exclusive prerogative” to set up benches and allocate cases to judges, the legal fraternity appeared divided on whether CJI Dipak Misra should have heard the matter involving the powers of the office he holds.

Justice A P Shah, former Chief Justice of Delhi High Court, said it was “inappropriate” on the part of the CJI to have heard a matter where the “issue involved is about the powers of the CJI”.

“He should have not heard the matter. He should not have even constituted the bench. The issue involved is about powers of the CJI. I am sure the CJI was aware about the other petition (Shanti Bhushan’s petition that a collegium of five senior judges should exercise the power to allocate cases, and not only the CJI) — why was the other petition not taken up with this… The system should be transparent, fair and just.

Read | CJI bench on CJI: First among equals, power to allocate work

According to me, it was inappropriate on his part to take this up. This is a larger issue and should have been by a bench appropriately constituted. And not by the CJI himself. And without taking the other matter, which also rendered this issue and pass a judgment, I find it very disheartening. There was an opportunity to reform the system,” Justice Shah told The Indian Express.

Former Supreme Court judge K T Thomas said if the CJI is “personally named as an interested party” in the petition, he should refer it to a different bench.

On whether the CJI should hear a petition which questions the validity of the powers of the CJI, Justice Thomas said: “That also is a matter to be decided by the CJI. It is argued that it should be heard by a bench other than CJI. This will arise only if it is a matter personally concerning the CJI and that he is an interested party in the matter. If that is the case, he should definitely not hear that matter. But then that case also can be allocated to a bench of his choice. That is the difference.”

Justice Thomas cited a 1997 matter on the issue of the roster being allocated by former Chief Justice J S Verma to the bench of Justice A S Anand. Referring to State Of Rajasthan vs Prakash Chand, Justice Thomas said that the then CJI Justice Verma did not hear the matter as the petition had named him.

Read | CJI has authority to allocate cases; here’s what SC order says

“If it is a matter concerning Justice Dipak Misra alone, then it can be heard by someone else. In 1997, during the time of CJI J S Verma, Justice Anand had heard a matter involving the issue of the master of the roster. Here the Rajasthan High Court order had named Justice Verma, when he was heading the Rajasthan HC. And that’s why Justice Verma allocated the matter to Justice Anand,” Justice Thomas said.

Read | If Justice Gogoi isn’t made CJI, our fears would come true: Justice Chelameswar

Former CJI K G Balakrishnan had a different take. “I don’t know what is the problem. He is the administrative judge.” He reiterated that the CJI is the master of the roster. “It is a convention in all high courts that the Chief Justice allocates work subjectwise. I have not come across any problem with this matter. If Chief Justice does not allocate, who else will? Our system is not like the US Supreme Court where all judges sit together,” he said.

According to a PTI report, senior advocate and former Attorney General Mukul Rohatgi said: “I think it is a correct order. The CJI is the master of the roster and it is improper to make allegations against the CJI, whether the current one or any other holder of this office, because somebody has to do the job. It is always done by the CJI in the Supreme Court and chief justices in the high court.”

The law is already settled,he said, adding, “on roster, the prerogative is of the CJI and this has been settled by judicial pronouncements and the Supreme Court rules also. On roster and constitution of benches, CJI has the prerogative.”

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