Ex-judges say: CJI Dipak Misra shouldn’t have heard case about his own
Justice A P Shah, former Chief Justice of Delhi High Court, said it was
“inappropriate” on the part of the CJI to have heard a matter where the
“issue involved is about the powers of the CJI”.

Written by Kaunain Sheriff M | New Delhi | Updated: April 12, 2018 4:50:04

Chief Justice of India Dipak Misra. (Express Photo: Ganesh Shirsekar)

As the Supreme Court reiterated that the Chief Justice of India had the
“exclusive prerogative” to set up benches and allocate cases to judges, the
legal fraternity appeared divided on whether CJI Dipak Misra should have
heard the matter involving the powers of the office he holds.

Justice A P Shah, former Chief Justice of Delhi High Court, said it was
“inappropriate” on the part of the CJI to have heard a matter where the
“issue involved is about the powers of the CJI”.

“He should have not heard the matter. He should not have even constituted
the bench. The issue involved is about powers of the CJI. I am sure the CJI
was aware about the other petition (Shanti Bhushan’s petition that a
collegium of five senior judges should exercise the power to allocate
cases, and not only the CJI) — why was the other petition not taken up with
this… The system should be transparent, fair and just.

Read | CJI bench on CJI: First among equals, power to allocate work

According to me, it was inappropriate on his part to take this up. This is
a larger issue and should have been by a bench appropriately constituted.
And not by the CJI himself. And without taking the other matter, which also
rendered this issue and pass a judgment, I find it very disheartening.
There was an opportunity to reform the system,” Justice Shah told The
Indian Express.

Former Supreme Court judge K T Thomas said if the CJI is “personally named
as an interested party” in the petition, he should refer it to a different

On whether the CJI should hear a petition which questions the validity of
the powers of the CJI, Justice Thomas said: “That also is a matter to be
decided by the CJI. It is argued that it should be heard by a bench other
than CJI. This will arise only if it is a matter personally concerning the
CJI and that he is an interested party in the matter. If that is the case,
he should definitely not hear that matter. But then that case also can be
allocated to a bench of his choice. That is the difference.”

Justice Thomas cited a 1997 matter on the issue of the roster being
allocated by former Chief Justice J S Verma to the bench of Justice A S
Anand. Referring to State Of Rajasthan vs Prakash Chand, Justice Thomas
said that the then CJI Justice Verma did not hear the matter as the
petition had named him.

Read | CJI has authority to allocate cases; here’s what SC order says

“If it is a matter concerning Justice Dipak Misra alone, then it can be
heard by someone else. In 1997, during the time of CJI J S Verma, Justice
Anand had heard a matter involving the issue of the master of the roster.
Here the Rajasthan High Court order had named Justice Verma, when he was
heading the Rajasthan HC. And that’s why Justice Verma allocated the matter
to Justice Anand,” Justice Thomas said.

Read | If Justice Gogoi isn’t made CJI, our fears would come true: Justice

Former CJI K G Balakrishnan had a different take. “I don’t know what is the
problem. He is the administrative judge.” He reiterated that the CJI is the
master of the roster. “It is a convention in all high courts that the Chief
Justice allocates work subjectwise. I have not come across any problem with
this matter. If Chief Justice does not allocate, who else will? Our system
is not like the US Supreme Court where all judges sit together,” he said.

According to a PTI report, senior advocate and former Attorney General
Mukul Rohatgi said: “I think it is a correct order. The CJI is the master
of the roster and it is improper to make allegations against the CJI,
whether the current one or any other holder of this office, because
somebody has to do the job. It is always done by the CJI in the Supreme
Court and chief justices in the high court.”

The law is already settled,he said, adding, “on roster, the prerogative is
of the CJI and this has been settled by judicial pronouncements and the
Supreme Court rules also. On roster and constitution of benches, CJI has
the prerogative.”


‘CJI first among equals’: SC dismisses plea to change rules on case
The Supreme Court bench led by the Chief Justice of India Dipak Misra held
that the CJI has been entrusted the power to constitute benches and
allocate work.

Updated: Apr 11, 2018 20:27 IST

Bhadra Sinha

Hindustan Times, New Delhi

The matter of allocation of cases was highlighted by four top Supreme Court
judges at a press conference in January.
The matter of allocation of cases was highlighted by four top Supreme Court
judges at a press conference in January. (HT file)
The Supreme Court on Wednesday refused to spell out guidelines for the
setting up of judicial benches and allocation of work at the apex court and
high courts, holding that this is the exclusive prerogative of the Chief
Justice of India (CJI) , as the “first among equals,” to decide on both.
The court’s stand reaffirms its current position — already reinforced in a
November 2017 ruling — which is at the core of differences between the CJI
and four senior judges of the court.

“The Constitution puts a CJI at the helm of affairs of the top court. CJI
is the head of institution, authority vested with him is to ensure smooth
administrative and judicial functioning of the court,” ruled a bench
comprising CJI Dipak Misra and justices AM Khanwilkar and DY Chandrachud

The top court dismissed a public interest litigation (PIL) that sought
guidelines for rational and transparent allocation of cases and
constitution of benches to hear them. It said in its judgement that the
current system ensures the independence of the court and that any move to
allocate cases to judges on the basis of expertise or seniority would only
end up questioning the competence of all SC judges.

According to Supreme Court rules, which have the sanction of the president
of India, the CJI has the discretion to allocate work and form benches of
the top court. This discretionary power of the CJI as the master of the
roster was questioned in Janauary by the four senior-most judges of the
apex court – justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian
Joseph – when they held an unprecedented press conference and protested
against work allocation by the CJI.

“There have been instances where case having far-reaching consequences for
the Nation and the institution had been assigned by the Chief Justices of
this Court selectively to the benches “of their preference” without any
rationale basis for such assignment. This must be guarded against at all
costs,” the judges wrote in an open letter to the CJI .

Read | SC judges vs CJI Dipak Misra: How cases are allocated in India’s top

At an event on Saturday, Chelameswar spoke on the issue and said that while
the CJI undoubtedly had the power to constitute benches to hear different
cases as the mater of the roster, “this power has to be exercised for
achieving some public good. It can’t be exercised just because it is there.
All power is trust and it has to be done for some public good.”

Dismissing the petition filed by Lucknow resident Ashok Pande, the
three-judge Supreme Court bench headed by Misra on Wednesday asserted the
primacy of CJI in work allocation and held: “In the allocation of cases and
the constitution of benches, the Chief Justice has an exclusive
prerogative. As a repository of constitutional trust, the Chief Justice is
an institution in himself. The authority which is conferred upon the Chief
Justice, it must be remembered, is vested in a high constitutional

Reaffirming the unique position of the Chief Justice of India as the head
of the judicial institution, the court said, “The entrustment of functions
to the Chief Justice 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. There cannot be a presumption of

Read | Turmoil in Supreme Court as four judges speak out against Chief
Justice Dipak Misra

Petitioner Pande, who filed the plea after the January press conference by
the top four SC judges, also said in his petition that Constitution benches
set up by the apex court should comprise the five senior-most judges.He
asked for specialised benches to deal with public interest litigation, tax,
criminal, land and service matters.

The court said: “ To suggest that any Judge would be more capable of
deciding particular cases or that certain categories of cases should be
assigned only to the senior-most among the Judges of the Supreme Court has
no foundation in principle or precedent. To hold otherwise would be to cast
a reflection on the competence and ability of other judges to deal with all
cases assigned by the Chief Justice notwithstanding the fact that they have
fulfilled the qualifications mandated by the Constitution for appointment
to the office.”

The January press conference of the SC judges and the ensuing controversy
have prompted some opposition parties to consider moving a motion in the
Rajya Sabha to impeach the chief justice.

Peace Is Doable

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