Recently, a Division Bench of the Supreme Court, in Ritu Chhabria v. Union of India, affirmed an undertrial’s right to be released on default bail in the event of the investigation remaining incomplete and proceeding beyond the statutory time limit. It frowned upon the practice of investigative agencies charge-sheeting an accused despite the investigation being unfinished. It held that the right to be released on bail will not be extinguished on the mere filing of a preliminary charge-sheet. It concluded that an accused’s right to seek default bail would be terminated only upon competition of the investigation within the statutory time limit.
An extraordinary decision
Subsequently, in a surprising turn of events, the Court of the Chief Justice of India (CJI) entertained a recall application moved by the Union of India against this judgment. It then passed an interim order directing courts to decide bail applications without relying on the decision laid down in Ritu Chhabria for a short period of time. In a nutshell, by stripping the decision of the Division Bench of its precedential value even if for a short while, the Court of the CJI indirectly stayed the decision despite not having any connection with the verdict.
Ordinarily, the only recourse available to the Union of India was the filing of a review petition, which is usually decided by the same Bench. There was no scope of the review petition being entertained by the Court of the CJI. The only way the Court of the CJI could enter the fray would be if there was another Coordinate Bench seized of the same issue in a separate matter, expressing its disagreement with the ratio laid in Ritu Chhabria and referring it to the CJI for recommendation to a larger Bench. There was no scope for a recall application being filed against a judgment, that too before an altogether different Bench. Doing so is tantamount to bench fishing or forum shopping. Therefore, by entertaining an intra-court appeal within the Supreme Court as an additional mechanism against an order passed by a Bench that did not include the CJI, the Court of the CJI has effectively instituted a mechanism that is completely devoid of any legislative or constitutional backing.
First amongst equals
Within the constitutional scheme of things, all judges of the Supreme Court are equal in terms of their judicial powers. However, the CJI enjoys special administrative powers such as constituting Benches and assigning matters and references for reconsideration of a larger Bench. The CJI is known as the ‘Master of the Roster.’ This is why he is regarded as ‘first amongst equals’ in relation to companion judges. But in any given Bench including the CJI, the vote or power given to the CJI is the same as that given to his companion judges. History is replete with examples of the CJI authoring a minority opinion of the Court. The most recent such order was the one passed by the Supreme Court in the Economic Weaker Sections quota dispute where the then CJI, Justice U.U. Lalit, along with Justice S. Ravindra Bhat authored the minority opinion of the Court. Most Commonwealth countries such as the U.K., Australia and Canada have this system in place. And countries which don’t, such as the U.S., instead have a system where all the judges collectively exercise power and render decisions since they sit en bloc. Thus, they reflect the collective strength of the Court and not of Benches, as is the case in India. In India, the legitimacy of the power of Master of the Roster has been hotly debated, and has been, from time to time, reaffirmed to the extent of administrative decisions for the smooth functioning of the Court. By no stretch of imagination does the present order of the CJI fall within the powers envisaged under the ‘Master of the Roster’ system. It is ironic that a judgment which emphasised on abiding by the statutory procedure for investigation and bail was effectively undone by a doubtful procedure that is completely alien to both the Constitution as well as the Supreme Court Rules. The interim order raises concerns because, in the near future, if the government is displeased with the order of one Bench, it can simply go before the CJI to get the decision stripped of all its legal sanctity instead of re-convincing the same Bench in a review.
Cause for concern
Despite the administrative usefulness of the ‘Master of the Roster’ system, the many recorded instances of abuse are a cause for concern. Just five years ago, four senior judges of the Supreme Court alleged serious infirmities and irregularities in the administration and assigning of cases for hearing to Benches of the Court. The powers vested in the CJI by his virtue of being the Master of the Roster are unending. It is impractical to lay any limits on these powers, meant for the smooth administrative functioning of the Court. It is imperative that the CJI himself refrains from expanding his powers as Master of the Roster; the practice of constituting Benches and allocating cases should be completely computerised and left out of the hands of the CJI.
The CJI’s powers as the Master of the Roster are meant only for administrative decision-making. The order has the effect of enlarging the powers of the CJI on the judicial side and of creating an unprecedented intra-court appellate mechanism within the Supreme Court in total disregard of the established procedure, which is a review petition. The instant order has also dulled the bright line prohibiting the Court of the CJI from assuming that it is superior to all other Benches.
