Working of Master of Roster

Introduction

Ever since its origin, the phenomenon of Master of Roster has been on and off a challenging phenomenon. Mostly because it tends to bestow a lot of administrative prowess in the hands of the Chief Justice. Master of Roster (hereafter “MoR”) in legal connotation means the idea of constitution of benches for hearing of cases, this prerogative as to who will sit in a Bench to hear which case, lies with the Chief Justice of India (CJI) at Supreme Court of India and with Chief Justice of the High Court of each State respectively. Order 6 of the Supreme Court Rules, 2013¹ provides for this prerogative to be exercised by the Chief Justice of India, simultaneously the respective High Court Rules bestow this prerogative with their Chief Justices. It is a pre-constitution colonial practice originated in 1860’s with the coming of the High Courts Act of 1861 and continued ever since than in the Superior Courts of India.

However, it is necessary to question the normative basis of this phenomenon, along with its relation with the judicial side. It has been reiterated by the Supreme Court of India time and again that the Chief Justice on the judicial side is equivalent to his associate Judges on the Bench.² However, on the administrative side he/she is first among the equals.³ Being the seniormost Judge on the Bench, it is his/her administrative responsibility to maintain the decorum of the Bench as well as to look into the administration of it. The Supreme Court of India reiterate that the prerogative of the MoR needs to be exercised by the CJI,⁴ as this cannot be left at the whims and fancies of individual Judges choosing the case of their own liking, as it will lead to judicial selectivism and a probable breach of the judicial discipline.⁵

However, this reasoning requires a deeper analysis on the standards of the constitutional tenets. Knowing that the Indian Constitution perpetuates the idea of accountability and transparency, the prime question which circle around the phenomenon of MoR is, does it fall in sync with tenets of accountability and transparency. One of the prime arguments upon which the convention of MoR has been continued in post-constitution era is on the grounds of judicial discipline.⁶ But the question remains, is MoR the only way possible to maintain judicial discipline or are there alternate ways possible in which the judicial discipline can be maintained. And what normative necessity perpetuates to have the idea of judicial discipline? Is judicial discipline a necessary concomitant for maintaining judicial independence. It is a continued argument that the Chief Justice being the Senior Judge in the Bench, he/she is a class in itself and thus, the roster should be controlled by him/her alone as it will create decorum for other puisne Judges to follow.⁷

Questions underlying the research

The core idea behind MoR or any other tool which might be utilised for practising roster (allocation of cases) is to ensure administration of justice. The underlying research questions distributed among the sections of the current piece attempt to question what will be the most efficient way in which administration of justice can have maximum optimal(ity). If we need to answer this question, the corresponding question that follows up is, is MoR the most efficient tool for achieving the purpose of “administration of justice”? The other follow up question is whether absence of judicial discipline impacts the administration of justice? And if judicial discipline has a relation with administration of justice, the question comes up what is the most efficient way of attaining judicial discipline? Does MoR helps in achieving the two-pronged goal of judicial discipline and through discipline maintain a sound administration of justice. All these questions have a perplexing underpinning requiring more deeper understanding into the etymological origins of the phenomena of MoR. The requisite need of the situation as well as the current normative challenges against it. The authors will attempt to delve into these questions one-by-one and deduce harmonious balance among the compelling tenets.

Master of roster and administration of justice

A puisne Judge, whether in Supreme Court or High Court, has to follow the roster direction given by the Chief Justice and cannot contravene the same, as it will lead to breach of judicial discipline, further, it will impact the administration of justice.⁸ So it is a very well-accepted fact that judicial discipline helps in the cause of administering justice. A breach of which has the capacity of impacting flow of justice. However, administration of justice has a bigger compelling demand, the cause of justice cannot be achieved by means that normative(ly) are not suitable for it.

The means of achieving justice must also be fair and reasonable. Though discipline is a structural part for achieving the cause of justice. The history of judicial discipline as a tool has been a procedural rule of guidance for maintaining judicial conformity, if substantial number of cases pertaining to “judicial discipline” are analysed carefully, it reflects the idea of judicial conformity where inferior courts (if the authors are allowed to use the term) are kept in line with the judicial orders and judgments of the superior courts. So, if a High Court judgments/order is against the Supreme Court, the doctrine of judicial discipline will demand that the High Court does not breach the order/judgment of the Supreme Court and the same is applicable in case of tribunals going against High Court.⁹

However, the question remains, is MoR an optimum tool for achieving discipline, when can one say that under the garb of judicial discipline, an idea of judicial subordination is being pushed. Further, the end cause of all the institution is to have sound administration of justice, will “judicial discipline achieved MoR” help in achieving a sound administration of justice, or whether there is a possibility of judicial subordination in cases of MoR.

Judicial discipline might be an essential tool for maintaining a decorum within the court and surely is helpful in achieving the cause of justice, but discipline per se is not the goal. There is a lot of power complexity attached with this question. When we regard power of roster as a prerogative of the Chief Justice, this might turn our attention away from the real purpose of the institution that is administrating justice. If an unwarranted power centre is created in the position of Chief Justice, that might be diverting from the real purpose. However, several judicial ink has flown in reiterating the same ideologue that power of roster is the ultimate prerogative of the Chief Justice, and any indiscipline to it is deprecated,¹⁰ thus puisne Judges should practise judicial restraint¹¹ and follow the administrative orders of the Chief Justice.¹²

Corresponding to the doctrine of “judicial discipline” is the principle of “judicial restraint”, which categorically is in sync with the judicial discipline principle, demanding the members of the judiciary to practise restraint and not to give into urges which will be against the clean image of the judiciary. It is conducive to mention that when the author uses the term “judicial restraint”, the author refers to the conformity of the Judges with the administrative orders of the Chief Justice. Judicial Discipline and Judicial restraint are seen as mutually cooperative principles in maintenance of independence of judiciary¹³ as well as a necessary predicament for the orderly administration of the justice.¹⁴

Allocation of cases and repetition of Benches

Another phenomenon which leads to skepticism against the MoR is the repetition of Benches and ignorance of the Senior Judges. The prerogative of the MoR bestows a lot of power within the seat of the CJI, several scholars suggest there are no check per se from turning this prerogative arbitrary. Yet conventionally, there are factors that need to be considered by the Chief Justice before allocation of a case to a Bench, these conventions have originated from the judicial history of the Court (these conventions are informing the procedure of the courts) and modified as per the particular demands of the institutions itself, the Chief Justice is guided by the need to ensure orderly administration of the Court.¹⁵ Considerations which are normally undertaken by the Chief Justice are seniority of the Judge¹⁶ his/her specialisation¹⁷, pendency of cases¹⁸ (Chief Justice have to have a regard to the kind of cases which are pending in the court and dispose of older cases, especially the criminal cases¹⁹), impending retirement of a Judge, since the case assigned to a Judge, who is due to demit the office, needs to be assigned to a different Bench.²⁰ Specialisation of the Judge might be one of the prime criteria(s) but yet it cannot be regarded as the sole criteria knowing new Judges on the bench need to be appropriately rotated in order to acquaint them with diverse discipline.²¹ However, the prime reason behind any allocation of the case to a bench would be administration of justice.²²

In seventy odd years of Indian Supreme Court existence, there is no per se predictable standard practice of the MoR, rather it has been changing with the CJI. Interestingly, allocating of cases to Senior Judges can be regarded as one practice of the MoR. However, in the last decade there have been abnormalcy in this practice as well: during the tenure of Justice Dipak Misra, Justice Chelameswar who was the second Senior Judge in the Bench never got to sit in any important constitutional law matter.²³

Alternating master of roster

Orderly administration of justice continues to be the recurring norm, and judicial discipline continues to be the structural part for achieving it. However, the question remains, can judicial discipline only be achieved through the process of Master of Roster, or is there a more suitable means available which can bring more efficiency in administration of justice. Talking about justice, equity too will be a compelling consideration in this mix, it will be fair to say that there cannot be administration of justice in absence of equity, similarly at par with justice is the question of optimality, what will achieve the highest standards of justice.

Optimal(ity) demands that the best possible outcome is achieved in a given situation, so if administration of justice is the predicament we are trying to achieve, the relevant question in this context will be what Bench is constituted, which Judge will be appropriate to hear a particular case, all these elements will help in optimal(ising) the goal of administration of justice.

In one of its speeches while making an observation as to the appointment of Judges, Dr B.R. Ambedkar reflected on the role of CJI as following:

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition.²⁴

Though the statement was made in reference to the judicial appointment, yet the observation is relevant from the perspective of possible fallacy which even the Chief Justice would have on account of being a human being. Further, to go back to little history, the Government of India Act, 1935²⁵ had institutionalised the idea of “Master of Roster”, Section 214(3) of the Act provided for the provision which recognised this prerogative, the section read as “…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”.

Interestingly, these provisions did not find any mention when transition to the Indian Constitution had taken place, Article 145(1)²⁶ (Article 121 in the draft Constitution) does not talks about the Chief Justice consisting of this prerogative, rather uses a generic term of “Supreme Court”. The article reads as “Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the court including”.

There is a clear aberration from the wordings of the Government of India Act, 1935. The term utilised under Section 214(3) was the “Chief Justice” and the term utilised in Article 145(1) is “Supreme Court”. However, as Parliament never made a law in this regard, the regulations were made by the Supreme Court with the approval of the President and the roster prerogative was bestowed onto the Chief Justice. Clearly, there was absence of any viable alternate choices, as no other model of roster was practised in the institutionalised judicial history of India. Master of Roster stuck as a colonial legacy, and to be honest in the initial years of Supreme Court and even the Federal Court there were no opportunities for exploring any new models of roster allocation.

The Federal Court as established by Government of India Act, 1935 only had three Judges (one English Judge as Chief Justice, one Hindu Judge and one Muslim Judge)²⁷ thus, all the Judges use to sit together to hear all the cases together (sort of an en banc session). In the initial years of Supreme Court, something similar was happening as there were only eight Judges in the Bench of Supreme Court in 1950’s thus all the Judges use to sit together,²⁸ it was only around 1956 that strength of the Supreme Court Bench increased to eleven from eight and thus question of separate Benches came in²⁹ and comfortably, the practice of Master of Roster was reiterated. Definitely there was a break of the Convention in between from 1937 to 1947³⁰ (when the strength of Court was only three, which later in 1947 was increased to five and by 1950 it was 6³¹, thus scope of practice of Master of Roster arose) from 1950 till 1956,³² so scholars who have supported the idea of Master of Roster on the grounds of being a continued Convention, the time period from 1937 to 1956 seems like an aberration from this practice.

Interestingly, none of the Common law countries tend to follow the same process of roster for allocation of cases as done in India. In fact the colonial power which introduced this practice in India itself does not follow the same practice, in United Kingdom’s Supreme Court, the work of allocating case is handled by the Registrar subject to the approval by the President and the Deputy President.³³ Similarly, in the US Supreme Court and in the New Zealand Highest Court, the practice of en banc session is followed.³⁴ Thus, these arguments open new avenues to ponder upon as an viable alternate to the current practice.

Studying the judicial behaviour

A study of the judicial behaviour becomes of utmost important, to bring a certain amount of predictability into the working of the prerogative of the MoR, as already portrayed earlier, lack of even application of the phenomenon only reflects the fact that the prerogative is not standardised, almost bordering at arbitrariness. George Gadbois Jr. In his famous paper on Judicial Behaviour³⁵ had observed the initial years of the Supreme Court of India and the Judges working under it, Gadbois has categorised the kind of opinions given by the Judges on the basis of analysis of 3272 cases.³⁶ The categorisation is as follows:

(i) A separate opinion concurring with the decision, however, disagreement with the reasoning or with the specific character of the decision by which the majority reached to the conclusion.³⁷

(ii) A solo dissenting opinion of the Judge, incapable of agreeing with the outcome reached, what is now, the majority.³⁸

(iii) A non-solo dissenting opinion, when they occur, usually takes the form of a dissenting opinion authored by one Judge is joined by one or more other Judges.³⁹

(iv) A separate opinion expressing concurrence with the dissenting opinion.⁴⁰

(v) A simple vote with the minority — aligning oneself with the minority but without writing a separate opinion.⁴¹

Gadbois emphasised on the fact that it takes a certain amount of extra effort to form an opinion against the majority.⁴² He termed it as “individualistic behaviour” of the Judge, not just agreeing with the majority, as enumerated in the five ways above, these are the ways Gadbois highlighted that an individualistic behaviour can be reflected.⁴³ Upon his extensive research, Gadbois laid the quantitative data as to how initially (even subsequently) the dissenting ratio of the Court was on the lower side, he gives the example of Justice Gajendragadkar, who had appeared in a record 993 decisions but never wrote a dissenting opinion.⁴⁴ While Justice Fazl Ali registered the highest individualistic behaviour ratio.⁴⁵

During the tenure of Justice Gajendragadkar, the dissenting ratio was at all time low in the Indian Supreme Court history, with repetition of Judges for hearing of matters refereed in Constitution Benches, Justice S.M. Sikri, Justice Wanchoo, Justice Raghubar Dayal and Justice Hidayatullah being a constant part of the Bench.⁴⁶ It goes without saying that the CJI has a major role in elevation of Judges from Bar and Bench in the Supreme Court, thus CJI will keep certain Judges in priority while constituting of Constitution Benches⁴⁷ especially when dissent is the last thing desired. George Gadbois writes in his book that how Justice Gajendragadkar had endeavoured to get Justice Sikri on the Supreme Court Bench, Justice Sikri being an advocate,⁴⁸ his elevation to the Supreme Court Bench was resisted by Justice Wanchoo and Justice Sinha⁴⁹ on the pretext that only a seasoned Judge from High Court should be elevated to the Supreme Court. However, Justice Gajendragadkar was able to elevate Justice Sikri onto the Bench, Justice Sikri also found repeated presence in Constitution Bench cases. It goes without any doubt that Justice Gajendragadkar believed in uniformity of opinion, in his tenure as CJI he used to pick Judges who will not dissent.⁵⁰ On superficial level, this might not seem as critical questions per se, however, what impact will this have on the “cause of justice” is a question worth pondering upon. It brings fore the psychological angle of the Judges, with a possibility that the Supreme Court or High Court will react as per the psyche of the Chief Justice.

Efficiency and alternative

As already stated earlier, the Master of Roster prerogative was originally contrived to bestow power on Chief Justice of the colonial courts (High Courts of Calcutta, Madras and Bombay) with racially white Judges seating on those positions.⁵¹Therefore, it becomes essential to question the elements going into creation of this power, is it a racial gradation system, or is there a substantial element of efficacy to it. When these questions are being tackled with, administratively there are two criteria on which it needs to be tested.

Efficiency must be the prime, if not the only, criteria for sustaining a modus operandi, in this case scenario the core question is, is the MoR mechanism the most efficient mechanism possible for allocation of cases?⁵² There have been instances, including the 2018 one, where dismay has been manifested at this prerogative, be it in 2018 when a motion for impeachment was brought against the former Chief Justice Dipak Misra in Rajya Sabha, it was rejected by the then Vice-President through an oral order on pretext of absence of any proved misbehaviour or incapacity.⁵³This oral order was challenged in Supreme Court, Court No. 2, but by the evening, the matter was referred to a different Bench, Fali S. Nariman has stated on this matter is his book writing “… in the evening the subject-matter was directed (obviously by the CJI) to be placed before a Constitution Bench …”,⁵⁴ Nariman also showed dismay on Justice Chelameswar for referring the matter for next day, knowing very well that prerogative of roster lies with Chief Justice. Further, in 2019 the prerogative was once again highlighted when a bench was established to hear “A matter of great public importance touching upon the independence of judiciary” in sexual harassment case against the former Chief Justice, eyebrows were raised as to how this matter handled initially, though allegations were found to be false, but the fact that an immediate Bench was established to hear the case was seen very sceptically.⁵⁵ Additionally, this is not a phenomenon which has recently happened, the prerogative has been under question for a long period of time, during the tenure of Justice A.N. Ray as Chief Justice, at the end phases of emergency, the dissenting ratio had gone as low as to 0.43%.⁵⁶ Justice K. Subba Rao, who is known as a great dissenter in the history of Supreme Court of India, never delivered a dissenting opinion while being a Chief Justice, in his interaction with George Gadbois Jr. He revealed that he used to select Judges for sitting with him in the Bench.⁵⁷ Similarly, Justice K.S. Hedge had recommended for creation of a permanent Constitution Bench.⁵⁸ The argument pertains as to the efficiency of the prerogative, thus, does the prerogative of MoR brings efficiency in deliverance of justice, it has to be understood that cognitive capacity of a Judge plays a major role in deliverance of justice. Thus, individualistic nature of the prerogative may in cases have less than desirable result. In fact, in Shanti Bhushan⁵⁹, the late Senior Advocate had filed a petition in Supreme Court in 2018 asking the Court to recommend a collegium for exercising the prerogative of Roster, however, the Court did not accept the arguments, categorically holding that provisions of Collegium cannot be read into the provisions of Article 145.⁶⁰ There are other mechanisms which are being pondered upon, once such being the use of technology for listing of cases for lowering the discretionary space for the registry and the CJI, something which was highlighted by the current CJI in his felicitation speech organised by the Supreme Court Bar Association⁶¹. Further, Collegium as an alternate can be a good start for bringing plurality of opinions, for making the process more democratic and accountable, something which was highlighted in Supreme Court Advocates-on-Record Assn. v. Union of India⁶².