Justice Chelameswar refuses to hear Shanti Bhushan's PIL on allocation of cases - here's why

The Supreme Court's most senior judge Justice J Chelameswar today once again expressed his anguish over affairs in the apex court and refused to order listing of a PIL filed by former Union law minister Shanti Bhushan seeking formulation of guidelines on allocation of cases.

In fast moving developments, advocate Prashant Bhushan, denied urgent listing of his father's PIL, rushed to Chief Justice Dipak Misra's court and mentioned the matter for listing expeditiously.

The bench headed by CJI said, "We will look into it." Bhushan initially mentioned the matter before Justice Chelameswar and said this was an emergency situation. He said he was referring the matter to Justice Chelameswar's bench as the PIL challenges the master of roster concept and the CJI can't deal with it.

Justice Chelameswar said said the reasons were too obvious and he would not like to deal with the matter.

He was quoted saying by the Hindu: “With two months left, I don’t want to hear that I am trying to grab some office. I do not want another reversal of my order in 24 hours. Let the nation decide its own course.”

His remarks came in the backdrop of two recent letters written by him and Justice Kurian Joseph over the affairs of the Supreme Court and alleged interference by the executive into judicial matters.

He said today that he had written a letter a few days ago to highlight affairs in the Supreme Court and in the country.

"Someone is running a relentless tirade against me that I am up to grab something. There is nothing I can do much in this. I am sorry, you please understand my difficulty," Justice Chelameswar told Bhushan.

He said the country will understand everything and will follow its own course. 

The Chief Justice of India (CJI) is the "first among equals" and occupies a unique position having the "exclusive prerogative" to allocate cases and set up benches to hear cases, the Supreme Court ruled on Wednesday.

The verdict assumed significance as it came in the backdrop of the January 12 unprecedented press conference of senior-most judges including Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph raising the issue of improper allocation of cases.

Significantly, senior advocate and former law minister Shanti Bhushan has also recently filed a PIL seeking clarification on the administrative authority of the CJI as the 'master of roster' and laying down of principles in preparing the roster for allocation of cases to different benches.

"In his capacity as a Judge, the CJI is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis (unique)...Article 146 reaffirms 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," a bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said.

Dismissing a PIL filed by Uttar Pradesh-based lawyer Ashok Pande seeking evolution of a "set procedure" to constitute benches and allot cases to different benches, the bench said that as a "repository of constitutional trust, the Chief Justice is an institution in himself".

"The authority which is conferred upon the CJI, 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," it said.

The entrustment of functions to the CJI 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, it said, adding "there cannot be a presumption of mistrust. The oath of office demands nothing less." Justice Chandrachud, writing the judgement for the bench, referred to the Supreme Court Rules, 2013 and said they were notified with the approval of the President.

"Rule 1 indicates that it is the Chief Justice who is to nominate the Judges who would constitute a Bench to hear a cause, appeal or matter. Where a reference has been made to a larger Bench, the Bench making the reference is required to refer the matter to the Chief Justice who will constitute a Bench," the judgement said.

The bench also referred to a recent five-judge bench verdict that had set aside an order passed by a bench headed by Justice J Chelameswar ordering setting up of a larger bench, comprising five senior most judges, to hear a PIL of NGO Campaign for Judicial Accountability and Reforms relating to alleged medical admisson scam.

It was held that once the Chief Justice is stated to be the Master of the Roster, he alone had the prerogative to constitute benches and neither a two-Judge, nor a three-Judge bench can allocate the matter to themselves or direct the constitution of a bench.

Referring to the binding order of the larger bench, the court, in its 16-page judgement, said the relief sought was "manifestly misconceived".

"It is a well settled principle that no mandamus can issue to direct a body or authority which is vested with a rule making power to make rules or to make them in a particular manner. The Supreme Court has been authorised under Article 145 to frame rules of procedure...," it said, adding that such authority lies "exclusively in the domain" of the CJI.

Besides setting up norms for allocaiton of cases, the PIL had sought a direction to the apex court for making a rule to the effect that "a three judge Bench in the Court of the Chief Justice should consist of the Chief Justice and the two senior-most judges while a Constitution Bench should consist of five senior-most judges (or three senior-most' judges and two juniormost' judges)." It had also sought "bifurcation of apex court into a 'Supreme criminal court', with similar divisions to hear PIL, tax, service, land disputes and miscellaneous matters".

The bench rejected these prayers also by terming them as "misconceived".