Supreme Court to examine plea on CJI’s power to allocate cases

“Four of your colleagues have gone public. Your lordships should take judicial notice of what is happening in the country,” Dave told the Bench. “Don’t bring that here. We are not going into it. We are not concerned with it,” the Bench said.

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Dave said the petition raises substantial questions about the interpretation of the Constitution based on the principle that the law is above all. He claimed that the allocation of cases in several instances happened contrary to protocol set by the court. The counsel said that while the CJI includes the Collegium for the exercise of judicial functions, but the practice was not extended to administrative matters like allocation of cases.

Justice Sikri pointed out that hundreds of cases are filed in the court every day and at least a lakh cases annually. It won’t be practical to say that five judges should sit and decide allocation of these cases, he said. But Dave said that the CJI does not decide on allocation of all cases and is consulted only on select cases by the Registry. “In democracy there is nothing called absolute discretion,” he said. In sensitive cases, the CJI must consult the collegium judges regarding allocation, he said.

But Justice Ashok Bhushan said, “It will be very difficult to decide what is sensitive and what is not… Some cases may appear sensitive to you, others may feel something else is sensitive.” Dave then defended the November 9 order by a bench headed by Justice Chelameswar directing that a petition seeking probe into the medical admission scam in which the CBI had arrested former Orissa High Court judge I M Quddusi be placed before a Bench comprising five most senior judges.

Justice Sikri responded with a query: “So you have no objection on the power of the CJI as Master of Roster, but your point is about the manner in which the power has to be exercised?”

As Dave responded in the affirmative, Justice Sikri said: “Prima facie, we don’t see that for this, the CJI be treated as Collegium”. He also asked the counsel to “come up with suggestions” on what else can be done. The judge said, “What you are saying is right as an abstract principle… we have said many times that power of judicial review is has to be exercised for upholding rule of law and for purpose of protecting the constitution”.

As Dave again pressed his demand that CJI should exercise his power to allot cases in consultation with the other judges of the Collegium, Justice Sikri said, “This is not a solution which is feasible.”

The Senior Advocate then referred to what he said were past instances of allocation of cases. Justice Sikri continued that “all that we are saying is whether this is justiciable at all”.

At this juncture, Senior Advocate Kapil Sibal said he had come to court with a “heavy heart” and added that he didn’t want to make any personal charges as that would harm the institution.

Justice Sikri said the bar was an equal partner in upholding the rule of law. Sibal sought to know what the recourse was if no solution can be found internally. “If it cannot be done administratively or judicially, then this will be the only provision in the Constitution which cannot be challenged”, he said, adding “it is unacceptable”.

Justice Sikri said there are judgments that CJI is the Master of the Roster. He then asked ASG Mehta if he would ask the AG to assist the court. He answered in the affirmative when the court asked both him and the AG to assist it.