Former Supreme Court judge, Justice Kurian Joseph, on February 24 revealed that hectic meetings held among judges within the top court immediately after the January 2018 press conference even considered shifting the power of ‘master of roster’ (the authority to allocate cases among judges) from the sole custody of the Chief Justice of India to a three-judge committee.
The January 2018 press conference saw four senior-most judges of the top court, including Justice Joseph, publicly express their apprehensions about the listing of certain sensitive cases in the top court and the independence of the judiciary, considered a basic feature of the Constitution. Memories of the January 2018 press conference were rekindled recently when two senior lawyers, Dushyant Dave and Prashant Bhushan, separately wrote to Chief Justice of India D.Y. Chandrachud and the Supreme Court Registry about “irregularities” in the listing of cases.
Justice Joseph (retd) said the meetings were held between the four judges and their colleagues, who were in line to be future Chief Justices of India, for at least two weeks following the press conference.
The retired judge recounted they had discussed the “perception among the public” that the ‘master of roster’ functions were not handled the way it should be, and needed to be “appropriately regulated”.
“A suggestion was raised to form a ‘master of roster committee’ of the first three judges of the court. One of them would naturally be in line to be the next CJI. They could take decisions on the listing of cases, constitution of the Benches, subject allocations of judges and what to do when a judge recuses from a case. These were the four issues the ‘master of roster’ should handle sensitively, and not sensationally,” he said.
The former judge said “it should not be left to one person to select four or five judges to constitute a Bench”. Justice Joseph said the “trend” now was that “if a case is posted before a Bench, people are able to predict what the result would be”.
He was speaking on the topic of ‘Supreme Court administration and management - issues and concerns’ at a seminar organised by the Campaign for Judicial Accountability and Judicial Reforms, legal website Live Law and news website The Wire.
Pendency a worry
Justice Madan B. Lokur (retd), also one of the four who held the press conference, said petitions challenging the electoral bonds scheme, demonetisation, abrogation of Article 370, etc, had remained pending for years in the Supreme Court before they were heard. Justice Lokur referred to how student activist Umar Khalid chose to withdraw his bail plea after repeated adjournments. Opacity and delay in listing of cases affect life, personal liberty and the quality of justice, Justice Lokur, and later advocate Prashant Bhushan, highlighted.
The former judge said either there could be discussions about listing of cases, choice of Bench, etc., or there was a more “fearsome solution” involving the invocation of Article 145 of the Constitution.
“Article 145 allows Parliament to make a law dealing with several aspects regarding the functioning of the Supreme Court… What if Parliament makes a law and says ‘this is how the Supreme Court is supposed to function’. We have that example in the new law on the Election Commissioners,” Justice Lokur pointed out.
Senior advocate Kapil Sibal, speaking on the topic of “recent trend” in the Supreme Court on cases involving civil liberties and political rights moderated by activist Anjali Bhardwaj, highlighted how arrests – made on mere suspicion – under the Unlawful Activities (Prevention) Act (UAPA) has become a tool to quell dissent.
“How do I convince a judge that I am not guilty of an offence in order to get bail when I do not know the facts or the offences arraigned against me in the case,” Mr. Sibal asked.
