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TMI Blog2018 (7) TMI 2219X X X X Extracts X X X X X X X X Extracts X X X X ..... the law, human dignity and liberal democratic values - the judiciary even without the sword or the purse, remains the guardian of the Constitution. Its sole strength lies in the public confidence and the trust. The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary - It has also become a regular feature that even laymen, who are constitutionally illiterate, enter such debate and evaluate the outcomes influenced by their emotions, rather than on legal or constitutional principles. The role of the 'Chief Justice' as Master of Roster also assumes much significance. Each 'Chief Justice' performs his role by consultation and consensus, after taking into account various factors including individual Judges' interests and abilities, their specialisation in a particular area, their capacity to handle particular type of cases and many other relevant considerations. However, the exercise of such a power with wisdom has to be left to the 'Chief Justice' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 (Arising out of Diary No. 12405 of 2018) (Under Article 32 of the Constitution of India) - - - Dated:- 6-7-2018 - A.K. Sikri and Ashok Bhushan, JJ. For Appellant: Dushyant Dave, Sr. Adv., Prashant Bhushan, Cheryl D'souza, Priyanka, Amir Nabi and Omanakuttan K.K., Advs. For Respondents: K.K. Venugopal, AG, Tushar Mehta, ASG and Rohit Bhat, Adv. JUDGMENT Authored By : A.K. Sikri, Ashok Bhushan A.K. Sikri, J. 1. The name of Respondent No. 2 is deleted from the array of parties, inasmuch as, having regard to the nature of submissions made during hearing, which would be taken note of at the appropriate place, Respondent No. 2 is not a necessary party. 2. The Petitioner herein, who is a senior advocate practicing in this Court and enjoys credible reputation in the profession as well as in public, has filed this writ petition Under Article 32 of the Constitution of India. In this writ petition, he seeks this Court to clarify the administrative authority of the Chief Justice of India (for short, the 'Chief Justice') as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure, subject to the following clarification: i) The words 'Chief Justice of India' must be deemed to mean a collegium of 5 senior judges of this Hon'ble Court. (b) That this Hon'ble court may be pleased to issue a writ of declaration of a writ in the nature of declaration or any other appropriate writ, order or direction holding and declaring that the consultation by the Registry Officials for listing purposes, if any with the Hon'ble Chief Justice of India must include consultation with such number of senior-most judges as this Hon'ble court may fix in the interest of justice. (c) That this Hon'ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction prohibiting the Hon'ble Chief Justice of India and concerned Respondents from listing any matter contrary to the Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure or picking and choosing Benches for the purpose of listing contrary thereto, with the above modification of replacing 'Chief Justice of India' with the collegium of 5 senior most judges of this Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules Under Article 145 is, therefore, conferred upon the entire Court, which power includes power to frame the Roster and direct hearing/listing of matters. (b) Thus, although the Chief Justice is the Master of the Roll under the convention, the Constitution has departed from the conventional Scheme to confer power upon the supreme Court. (c) The expression 'Chief Justice' has been interpreted by a Constitution Bench of this Court in S.P. Gupta v. Union of India and Anr. (1981) Supp. SCC 87 (known as the First Judges' case ) to mean a 'Collegium'. This was done to ensure a guard against the absolute power being conferred upon the Chief Justice alone. It was observed in the said judgment as follows: 31...We are all human beings with our own likes and dislikes, our own predilections and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations. It may also be noticed that it is not difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising the power as a Master of Roster in allocating a Bench to hear particular kind of cases, the Chief Justice performs his function in an administrative capacity. He also submitted that applicability of the principle of bias is to be judged by applying the test of reasonable apprehension of bias in the mind of a party, as held in the case of Ranjit Thakur v. Union of India and Ors. (1987) 4 SCC 611. It was emphasised that the Constitution of India has created an independent judiciary which is vested with the power of judicial review to determine the legality of administrative actions and, thus, it becomes the solemn duty of the judiciary to keep the organs of the State within the limits of the power conferred by the Constitution by exercising the power of judicial review which is the sentinel on the qui vive. When such an important task is assigned to the judiciary, power of listing the cases has to be exercised in a fair and transparent manner so as to instill confidence in the public at large that the matter shall be decided by the Court (or for that matter, by a particular Bench) strictly on legal principles to ensure that Rule of Law, which is a part of the basic struct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to anyone, not even to the Chief Justice of India as an individual, much less to the executive, which earlier had absolute discretion under the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. xx xx xx 480. The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in consultation with the two senior most puisne Judges of the Supreme Court. 4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment. 9. Towing the aforesaid line, Mr. Dave proceeded to argue that the modern trend in all robust legal systems governed by democratic principles was to ensure that even administrative powers of the Chief Justice must be shared with other senior Judges so that the power is exercised properly and validly. In support, the learned senior Counsel referred to the system that prevails in the United Kingdom Supreme Court, High Court of Australia (which is the apex court of that country), Supreme Court of Canada, German Federal Court and even European Court of Human Rights and European Court of Justice. 10. Mr. Venugopal, learned Attorney General, in reply to the aforesaid arguments of the Petitioner, submitted that the Petitioner has virtually accepted the legal position to the effect that the Chief Justice is the 'Mast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse of responsibility. At the same time, it also becomes our duty to decide the matter in accord with the legal position that is contained in the Constitution and the Statutes and the legal principles engrafted in the precedents of this Court having binding effect. ROLE OF THE 'CHIEF JUSTICE' AS THE MASTER OF ROSTER 12. There is no dispute, as mentioned above, that 'Chief Justice' is the Maser of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. The Petitioner has been candid in conceding to this legal position. He himself has gone to the extent of stating in the petition that this principle that 'Chief Justice' is the Maser of Roster is essential to maintain judicial discipline and decorum and also for the proper and efficient functioning of the Court. Notwithstanding this concession, it would be imperative to explain this legal position with little elaborations, also by referring to some of the judgments of this Court which spell out the scope and ambit of such a power. 13. The Petitioner has himself, in the petition, referred to a three-Judge Bench in State of Rajasthan v. Prakash Chand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1], it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the Roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1], the Chief Justice is the Master of the Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. Further, the Constitution Bench held: 7. The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction to different Benches of the Supreme Court. In this behalf, he wanted that there should be a specific Rule in the Rules to the effect that the three Judge Bench in the Chief Justice's Court should consist of the Chief Justice and two senior-most Judges and also that Rules be made to the effect that the Constitution Bench shall consist of five senior-most Judges or three senior most Judges and two junior-most Judges. Similar mandamus was prayed for in respect of the Allahabad High Court to evolve identical set of Rules with respect to formation of Benches. 17. While negating the aforesaid relief claimed by the said Petitioner, the Court took note of the provisions of Article 145 of the Constitution which empowers the Supreme Court to make Rules for regulating generally the practice and procedure of the Court, including the matters specifically mentioned in Clause (I) of Article 145 of the Constitution, which Rules are to be made with the approval of the President of India. The Court also referred to Order VI of the Rules. This order deals with the constitution of division courts and powers of a Single Judge. Rule 1 thereof provides that it is the Chief Justice wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the approach of the Petitioner, which must be set at rest. The Petitioner seeks the establishment of a binding precept under which a three judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues alone while the Constitution Bench should consist of five senior-most judges (or, as he suggests, three 'senior-most' and two 'junior-most' judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. For one thing, as we have noticed earlier, this would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. Moreover, the Petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court Under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expertise in diverse branches of law. Together with the need for specialisation, there is a need for judges to have a broad-based understanding of diverse areas of law. In deciding upon the allocation of work and the constitution of benches, Chief Justices have to determine the number of benches which need to be assigned to a particular subject matter keeping in view the inflow of work and arrears. The Chief Justice of the High Court will have regard to factors such as the pendency of cases in a given area, the need to dispose of the oldest cases, prioritising criminal cases where the liberty of the subject is involved and the overall strength, in terms of numbers, of the court. Different High Courts have assigned priorities to certain categories of cases such as those involving senior citizens, convicts who are in jail and women litigants. These priorities are considered while preparing the roster. Impending retirements have to be borne in mind since the assignment given to a judge who is due to demit office would have to be entrusted to another Bench when the vacancy arises. These are some of the considerations which are borne in mind. The Chief Justice is guided by the need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is empowered to exercise 'leadership' on the Court. In this role, the 'Chief Justice' is expected to be the spokesperson and representative of the judiciary in its dealings with the Executive, Government and the Community. For this purpose, the 'Chief Justice' has a general responsibility to ensure that the Court promotes change and reform as appropriate. The judicial reforms, which is a continuing process in order to ensure that there is real access to justice, also becomes the moral responsibility of the 'Chief Justice'. Such reforms in the administration of justice are not limited to the judicial aspects (i.e. how the cases need to be decided, case management and court management, speedy disposal etc.) but also include reforms on the administrative side of the legal system as well. Procedural reforms and implementation thereof is an integral part of the judicial reform. The ultimate purpose is to dispense justice, which is the highest and noblest virtue. Again, in this role, the 'Chief Justice' gets the authority and responsibility for the administration of the Court, which gives him the ultimate authority for determining the distributi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Petitioner that the expression 'Chief Justice' is to be read as 'Collegium' consisting of five senior-most Judges, including the Chief Justice. The judgments cited by learned senior Counsel appearing for the Petitioner are in the context of Article 124 of the Constitution wherein the expression 'Chief Justice' was read as Collegium, after examining the Constitutional Scheme and the objective behind such a provision meant for appointment of Judges. The rationale provided in that context cannot be adopted while interpreting Article 145 of the Constitution, the purpose whereof is altogether different. We agree with the submission of the learned Attorney General that the task of constitution of Benches and allocation of specific cases to those Benches, can more smoothly be performed by the Chief Justice and discharge of such a function by the Collegium would be unworkable and also lead to many practical difficulties. 27. As already taken note of above, the basis of this argument is the judgment of this Court in Second Judges' case which laid the foundation of the Collegium system for the appointment of Judges. The relevant passages from the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in contrast with the meetings of the Collegium for the purpose of appointment of Judges, which is infrequent. Thus, meeting of Collegium for the purpose of assigning the cases to a particular Bench on daily basis is clearly impracticable. 28. It is trite that ratio of a judgment is what it decides and not what logically follows therefrom. The observations in the three Judges' case(s) are to be read in the context in which they are rendered. Once that is kept in mind, we arrive at a conclusion that the ratio of those judgments cannot be extended to read the expression 'Chief Justice', wherever it occurs, to mean the 'Collegium' of the senior Judges. 29. The argument of the learned Counsel for the Petitioner that function such as 'framing the Roster' and 'listing of important and sensitive matters' are extremely crucial and cannot be left to the sole discretion of the Chief Justice is also met in Asok Pande, in the following manner: 15. Underlying the submission that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that absent such a procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the precepts of constitutional trust and morality, and the solemn idea of decentralization of power and, we must say, the ideas knock at the door to be invited. The compulsive invitation is the warrant to sustain the values of democracy in the prescribed framework of law. The aim is to see that in the ultimate eventuate, the Rule of law prevails and the interpretative process allows the said idea its deserved space, for when the Rule of law is conferred its due status in the sphere of democracy, it assumes significant credibility. 5. We would like to call such a method of understanding confluence of the idea and spirit of the Constitution , for it celebrates the grand idea behind the constitutional structure founded on the cherished values of democracy. 31. The Constitution makers, thus, reposed great trust in the judiciary by assigning it the powers of judicial review of not only the administrative acts of the Government/Executive but even the legislative acts of the Legislature. In the process, judiciary discharges one of the most important functions, namely, the administration of justice. It does so by upholding the Rule of law and, in the process, protecting the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we suffer from self-inflicted mortal wounds . We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. 34. We may also quote the following passage from S.P. Gupta (per Pathak, J.): While the administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aster of Roster also assumes much significance. Each 'Chief Justice' performs his role by consultation and consensus, after taking into account various factors including individual Judges' interests and abilities, their specialisation in a particular area, their capacity to handle particular type of cases and many other relevant considerations. However, the exercise of such a power with wisdom has to be left to the 'Chief Justice' who is given the prerogative of the 'Master of the Roster'. 39. Mr. Dave had referred to certain international practices, namely, the practices adopted by the Apex Courts in other jurisdictions. We may only record that the judicial systems in different countries have different styles of functioning and the practices have been developed in various countries keeping in view the structure of the Courts 6 . Even the procedural characteristics of litigation are different. Therefore, system prevalent and developed in one jurisdiction cannot be mechanically adopted by judicial system in other countries. At the same time, there is no harm in adopting those healthy practices which have been developed in foreign jurisdictions and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear them say (as Edmund Burke had said in an election speech way back in 1780): Applaud us when we run; console us when we fall; cheer us when we recover; but let us pass on-for God's sake, let us pass on. 43. We, thus, dispose of the writ petition without any further directions. Ashok Bhushan, J. 44. I have advantage of going through the draft judgment of my esteemed brother Justice A.K. Sikri. I entirely agree with the opinion expressed by my brother, however, looking to the importance of the issues raised in the writ petition I also express my views on the subject. 45. The Petitioner, a senior advocate of this Court and former Law Minister has filed this writ petition Under Article 32 of the Constitution praying for following reliefs: a) That this Hon'ble Court may be pleased to issue a writ of declaration or a writ in the nature of declaration or any other appropriate writ, order or direction holding and declaring that listing of matters must strictly adhere to the Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure, subject to the following clarification: i) The words 'Chief Justice of India' must be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the proper and efficient functioning of the Court. However, the power to exercise such authority cannot be used in such a manner as to assert any superior authority by the Chief Justice. It is also a well settled principle of jurisprudence that the Chief Justice is only the first among equals. 6. A roster declares what work is assigned to High Court and Supreme Court Judges. 'Master of the Roster' refers to the privilege of the Chief Justice to constitute Benches to hear cases. It is a pre-requisite that this power must be exercised in a manner is that fair, just and transparent and in keeping with the high standards of integrity desired from the office of a Chief Justice of India. 47. The Petitioner refers to a Three Judge Bench judgment in State of Rajasthan v. Prakash Chand and Ors., (1998) 1 SCC 1, wherein it was held that the Chief Justice of the High Court is the master of the roster and he alone has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted. It is further pleaded in the writ petition that the writ petition raises questions relating to the functioning of the Registry of the Supreme Court and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the Rules framed thereunder, it is the Chief Justice, who is contemplated to take decision regarding allocation of cases and constitution of benches. It is submitted by learned Attorney General that the exercise of allocation of cases and framing of roster is an exercise, which cannot be taken by multiple persons. He submits that there can be difference in members of collegium regarding allocation of cases, which shall hamper the smooth functioning of the Court. He submits that exercise of roster is entirely different from exercise of making recommendation for appointment of judges of this Court. By participation of other judges, there is likelihood that conflict of interest. Multiplicity of judges forming the roster will lead to chaos, hampering the smooth functioning of the Court. Learned Attorney General has referred to various judgments of this Court for the proposition that Chief Justice has been held to be master of roster and it is sole prerogative of Chief Justice to constitute benches and allocate cases to different benches for smooth functioning of the Court. Shri Dushyant Dave replying the submission of learned Attorney General submits that the objective of wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summary determination of any appeal which appears to the court to be frivolous or vexatious or brought for the purpose of delay. (2) Rules made under this Section may fix the minimum number of judges who are to sit for any purpose, so however that no case shall be decided by less than three judges: Provided that, if the Federal Legislature makes such provision as is mentioned in this chapter for enlarging the appellate jurisdiction of the court, the Rules shall provide for the constitution of a special division of the court for the purpose of deciding all cases which would have been within the jurisdiction of the court even if its jurisdiction had not been so enlarged. (3) Subject to the provisions of any Rules of court, 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. (4) No judgment shall be delivered by the Federal Court save in open court and with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this Sub-section shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment. (5) All proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash Chand and Ors. (1998) 1 SCC 1, which judgment has also been referred to and relied on by the Petitioner, had elaborately considered the subject in issue. In regard to the power of the Chief Justice in regard to constitution of benches, this Court after referring to Para 44 of Rajasthan High Court Ordinance, 1949 as well as Rule 54 of the Rules of the High Court of Judicature for Rajasthan laid down following in Paragraph 10: 10. A careful reading of the aforesaid provisions of the Ordinance and Rule 54 (supra) shows that the administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. He alone, has the right and power to decide how the Benches of the High Court are to be constituted: which Judge is to sit alone and which cases he can and is required to hear as also as to which Judges shall constitute a Division Bench and what work those Benches shall do. In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted. If every Judge of a High Court starts picking and choosing cases for disposal by him, the discipline in the High Court would be the casualty and the administration of justice would suffer. No legal system can permit machinery of the Court to collapse..................... 59. This Court has recorded its conclusion in Para 59, which is to the following effect: 59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment: (1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals. (2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted. (3) That the puisne Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate................................. 61. In D.C. Saxena v. Hon'ble The Chief Justice of India, (1996) 5 SCC 216, this Court held that it is the Chief Justice's prerogative to constitute benches and assign the judicial work and the judicial business would not hinge on the whim of a litigant. In Paragraph 26, following has been laid down: 26. ...............................The Chief Justice's prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant. 62. This Court further in State of Uttar Pradesh and Ors. v. Neeraj Chaubey and Ors. (2010) 10 SCC 320 held that power of Chief Justice of allocation of business of the High Court flows not only from the provisions contained in Sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. Following was observed in Para 9: 9. ..................If the Judges were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: (a) a Judge may by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in Clause (4). 65. Justice Bhagwati, speaking for majority in S.P. Gupta's case (supra) while interpreting Article 124(2) laid down following in Paragraph 31: 31................The Petitioners contended that the Central Government may, if it thinks fit, consult one or more of the Judges of the Supreme Court and of the High Courts or it may not consult any and where it does not, the Chief Justice of India will be the only constitutional functionary required to be consulted and in such a case the Central Government must accept the opinion of the Chief Justice of India as binding upon it. We do not think this argument is well founded. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations. It may also be noticed that it is not difficult to find reasons to justify what our bias or predilection or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. That is perhaps the reason why the Constitution-makers introduced the requirement in Clause (2) of Article 124 that one or more Judges out of the Judges of the Supreme Court and of the High Courts should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. xxxxxxxxxxxxxxxxxxxxx 67. In Third Judges case, Special Reference No. 1 of 1998, (1998) 7 SCC 739, approving the construction as was put by this Court in Second Judges case, Justice S.P. Bharucha, as he then was, in Para 160 held that collegium should consist of the Chief Justice of India and four senior most puisne judges of the Supreme Court. In Para 44, following answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the above constitutional scheme has read the word Chief Justice as collegium. Thus, the reason for reading the word Chief Justice as collegium in Article 124 has constitutional basis as elaborated in Second Judges case and Third Judges Case. 70. With regard to procedure and practice of Supreme Court, Article 145 empowers the Supreme Court to frame Rules with the approval of the President. The word practice and procedure of the Court are wide enough to include practice and procedure relating to preparation of roster and allocation of cases. The Rules framed by Supreme Court Under Article 145 specifically refers the Chief Justice in Chapter VI as noted above, the Chief Justice, who is to nominate the bench for hearing every case, appeal or matter. There is no indication in any of the constitutional provisions or Rules framed thereunder that for allocation of cases and formation of benches, Chief Justice should be read as collegium. For reading Chief Justice as collegium, Under Article 124, there was a constitutional basis as observed above. This Court had also on several occasions, noticed and expressed reasons for holding that it is the only prerogative of the Chief Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not empowered to do the same, is not a valid submission. Under the constitutional scheme itself as contained in Article 145, the practice and procedure of the Supreme Court is to be regulated by the Rules made by the Supreme Court with approval of the President. 74. As noted above, Rules framed Under Article 145 specifically empower the Chief Justice to nominate Benches for hearing cases or appeal. Non-containing of any specific provision in the Constitution empowering the Chief Justice to frame the roster to allocate the cases is inconsequential since the entire subject was to be covered by Rules made Under Article 145. 75. In considering the submissions raised in this case, we are reminded of prophetic words of Mr. Justice Holmes in Northern Securities Co. v. United States, 48 LAWYERS' EDITION U.S. 196 (1903). Holmes, J. said: Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n different Chapters provide for the conduct and business of the Court in orderly manner with certainty, there cannot be any dispute that when a procedure is laid down to be followed by officials of the Supreme Court, all business is to be transacted in the said manner. As noted above, for the purposes of this case, we need not dwell into listing of some cases as enumerated in the writ petition. Learned Counsel for the Petitioner candidly submitted that Petitioner is not questioning any order or judgment referred to in the writ petition. The endeavour of the writ Petitioner is to find out an appropriate procedure for proper and fair distribution of cases and constitution of Benches. 81. Learned Counsel for the Petitioner has also referred to and relied on various international practices. During the submission he has referred to practices pertaining to case assignment in United Kingdom Supreme Court, High Court of Australia, Supreme Court of Canada and the practice in United States Supreme Court. The practices and function of each Court are different which has been evolved by time looking to particular background and set of facts. The practice of a Court ripens into a convention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track ............................. But if the judiciary should be really independent something more is necessary and that we have to seek in the Judge himself and not outside. A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill will, hatred and contempt and fear and recklessness. In order to be a successful Judge these elements should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty. These curbs can neither be bought in the market nor injected into human system by the written or unwritten laws. If these things are there even if any of the protective measures provided by the Constitution and the laws go the independence of the judiciary will not suffer. But with all these measures being there still a Judge may not be independent. It is the inner strength of Judges alone that can save the judi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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