SHANTI BHUSHAN versus SUPREME COURT OF INDIA THROUGH ITS REGISTRAR AND ANOTHER

[2018] 12 S.C.R. 972

[2018] 12 S.C.R.

SHANTI BHUSHAN

SUPREME COURT OF INDIA

THROUGH ITS REGISTRAR AND ANOTHER

B(Writ Petition (C) No.789 of 2018)

JULY 06, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Constitution of India – Art.145 – Administrative authority ofChief Justice of India in preparing roster for allocation of cases –CClarification of – Held: Per A.K. Sikri, J.: The Constitution is silenton the role of the ‘Chief Justice’ – However, the Constitution Benchin the case of Campaign for Judicial Accountability and Reformshad held that Chief Justice alone has the administrative control ofthe Supreme Court and he is the Master of the Roster and he aloneDhas the prerogative to constitute the Benches of the Court andallocate cases to the Benches so constituted – Legal positioncontained in the various judgments of the Supreme Court is basedupon healthy practice and sound conventions which have developedover period of time and that stands engrafted in the SupremeCourt Rules – The two most obvious functions of the ‘Chief Justice’Eare to exercise judicial power as Judge of the Court on equalfooting as others, being ‘among equals’ and to assume responsibilityof the administration of the Court, which gives him the ultimateauthority for determining the distribution of judicial work load –Per Ashok Bhushan, J. (concurring): Sub-article (1) of Art.145Fprovides that subject to the provisions of any law made by Parliament,the Supreme Court may from time to time, with the approval of thePresident, make rules for regulating generally the practice andprocedure of the Court, including the various subjects as enumeratedin sub-article (1) – The power of the Chief Justice to allocate casesflows from the rules framed u/Art.145 – The Chief Justice of IndiaGhas been exercising the jurisdiction of formulating the roster forconvenient distribution of Court’s business and constituting thebenches from time to time – Furthermore, it is also clear from thelaw laid down by the Supreme Court in various Judgments thatallocation of business of Court by the Chief Justice not only flowsH

SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITSREGISTRAR AND ANOTHER

from the Constitutional provisions but it is the prerogative of theChief Justice and which is convention followed from the verybeginning – Supreme Court Rules, 2013 – Practice and Procedure.

Supreme Court Rules, 2013 – Whether the expression ‘ChiefJustice’ in the Supreme Court Rules is to be read as ‘Collegium’ offirst five Judges – Held: Per A.K. Sikri, J.: In case the expression‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficultto have smooth day to day functioning of the Supreme Court –Assigning of cases is undertaken by the Chief Justice on daily basisin contrast with the meetings of the Collegium for the purpose ofappointment of Judges, which is infrequent – Thus, meeting ofCollegium for the purpose of assigning the cases to particularBench on daily basis is impracticable – Per Ashok Bhushan, J.(concurring): Art.145 empowers the Supreme Court to frame ruleswith the approval of the President and the Rules framed by SupremeCourt u/Art.145 specifically refers the Chief Justice in Chapter VI,the Chief Justice, who is to nominate the bench for hearing everycase, appeal or matter – There is no indication in any of theConstitutional provisions or rules framed thereunder that allocationof cases and formation of benches, Chief Justice should be read ascollegium – Practice and Procedure.

Disposing of the Writ petition, the Court

HELD:

PerA.K. Sikri, J.:

1. The ‘Chief Justice’ in his individual capacity is the Masterof Roster and it cannot read as Collegium of first three or fiveJudges. Thus, it is his prerogative to constitute the Benchesand allocate the subjects which would be dealt with by therespective Benches. [Para 20] [995-D-E]

2. The Constitution is silent on the role of the ‘ChiefJustice’. There is no specific provision relating thereto either inthe Constitution or even in any other law. The legal positioncontained in the earlier judgments is based upon healthy practiceand sound conventions which have been developed over periodof time and that stands engrafted in the Supreme Court Rules.In fact, it is dominated by two stereo-types. One, perpetuated by

Athe common belief and widely endorsed and accepted by all thestakeholders, is that the ‘Chief Justice’ occupies the role of ‘firstamong equals’. The phrase ‘among equals’ is generally relatableto the judicial function designed to emphasise the fact that voicesof the members of particular Bench, which may include ‘ChiefJustice’, are given equal weight and that in deciding cases, theBopinion of the ‘Chief Justice’ also carries same weight and is nodifferent from those of other Members of the Bench. Thus, in agiven case, there is possibility that the view of the ‘Chief Justice’may be minority view and in that eventuality, the outcome ofcase would be what majority decides. The word ‘first’ in theCaforesaid expression signifies only the fact that the ‘Chief Justice’is the senior most Judge of the Court. [Para 21] [995-E-H;996-A]

3. The second stereotype is that being the ‘Chief Justice’and senior most Judge of the Court, he is empowered to exerciseD‘leadership’ on the Court. In this role, the ‘Chief Justice’ isexpected to be the spokesperson and representative of thejudiciary in its dealings with the Executive, Government and theCommunity. For this purpose, the ‘Chief Justice’ has generalresponsibility to ensure that the Court promotes change andreform as appropriate. The judicial reforms, which is continuingEprocess in order to ensure that there is real access to justice,also becomes the moral responsibility of the ‘Chief Justice’. Suchreforms in the administration of justice are not limited to thejudicial aspects (i.e. how the cases need to be decided, case

management and court management, speedy disposal etc.) butFalso include reforms on the administrative side of the legal systemas well. Procedural reforms and implementation thereof is anintegral part of the judicial reform. The ultimate purpose is todispense justice, which is the highest and noblest virtue. Again,in this role, the ‘Chief Justice’ gets the authority and responsibilityfor the administration of the Court, which gives him the ultimateGauthority for determining the distribution of judicial work load.[Para 22] [996-B-E]

4. Under the Constitution, the Supreme Court is given theauthority to frame Rules for regulating generally the practice andprocedure of the Court, including various subjects as enumeratedH

SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITSREGISTRAR AND ANOTHER

in sub-Article (1) of Article 145. Supreme Court Rules, 2013which have been framed in exercise of such power empoweredthe Chief Justice to constitute the Benches and list particularmatters before such Benches. Similar powers are conferred uponthe Chief Justice of the High Courts in the Rules framed byrespective High Courts for regulating its procedure.[Para 23] [997-A-B]

5. At the same time, the power of the ‘Chief Justice’ doesnot extend to regulate the functioning of particular Bench todecide cases assigned to him once the cases are allocated to thatBench. Bench comprising of puisne Judges exercise its judicialfunction without interference from others, including the ‘ChiefJustice’, as it is supposed to act according to law. Therefore,when particular matter is assigned to particular Bench, thatBench acquires the complete dominion over the case.[Para 24] [997-C]

6. It follows that the two most obvious functions of the ‘ChiefJustice’ are to exercise judicial power as Judge of the Court onequal footing as others, being ‘among equals’ and to assumeresponsibility of the administration of the Court. [Para 25][997-D]

Campaign for Judicial Accountability and Reforms v.Union of India & Anr. (2018) 1 SCC 196 – followed.

State of Rajasthan v.Prakash Chand & Ors. (1998) 1SCC 1 : [1997] 6 Suppl. SCR 1 ; Asok Pande v.Supreme Court of India through its Registrar and Ors.[2018] 3 SCR 337 – relied on.

Supreme Court Advocates-On-Record Association andOthers v.Union of India (1993) 4 SCC 441 : [1993] 2Suppl. SCR 659 ; S.P. Gupta v.Union of India andAnother (1981) Suppl. SCC 87 : [1982] SCR 365 ;Ranjit Thakur v.Union of India and Others(1987) 4SCC 611 : [1988] 1 SCR 512 ; Special ReferenceNo. 1 of 1998(1998) 7 SCC 739 : [1998] 2 Suppl.SCR 400 – referred to.

APerAshok Bhushan, J. (Concurring)

1. The law laid down by this Court as is clear fromprecedents, is that allocation of business of Court by the ChiefJustice not only flows from the Constitutional provisions but isheld to be prerogative of the Chief Justice and which is aBconvention followed from the very beginning. Apart from that,the power of the Chief Justice to allocate cases flows from rulesframed under Article 145 of the Constitution of India.[Para 20] [1015-F]

2. With regard to procedure and practice of Supreme Court,CArticle 145 empowers the Supreme Court to frame rules withthe approval of the President. The word practice and procedureof the Court are wide enough to include practice and procedurerelating to preparation of roster and allocation of cases. TheRules framed by Supreme Court under Article 145 specificallyrefers that the Chief Justice is to nominate the bench for hearingDevery case, appeal or matter. There is no indication in any of theconstitutional provisions or rules framed thereunder that forallocation of cases and formation of benches, Chief Justice shouldbe read as collegium. [Para 27] [1021-D-E]

3. The Attorney General rightly stated that allocation ofEcases and constitution of benches, if it is given in the multiplehands, there shall be differences and hurdles in smoothdistribution of work. Thus, the submission of the petitioner cannotbe accepted that in allocating cases and formulating benches ofthe Supreme Court, the word “Chief Justice” should be read asFcollegium, which submission is unfounded and is rejected.[Para 28] [1022-A-B]

State of Rajasthan v. Prakash Chand & Ors. (1998) 1SCC 1 : [1997] 6 Suppl. SCR 1 ; Inder Mani andOthers v. Matheshwari Prasad and Others (1996)G6 SCC 587 : [1996] 7 Suppl. SCR 400 ; Union ofIndia and Another v. Raghubir Singh (Dead) By LRs.Etc. (1989) 2 SCC 754 : [1989] 3 SCR 316 ;D.C. Saxena v. Hon’ble The Chief Justice of India(1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677 ;State of Uttar Pradesh and Others v. Neeraj Chaubey

SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITSREGISTRAR AND ANOTHER

and Others (2010) 10 SCC 320 : [2010] 11 SCR 542 ;S.P. Gupta v. Union of India(1981) Suppl. SCC 87 ;[1982] 2 SCR 365 ; Supreme Court Advocates onRecord Association and Others v. Union of India (1993)4 SCC 441 : [1993] 2 Suppl. SCR 659 ;SpecialReference No.1 of 1998 (1998) 7 SCC 739 : [1998] 2Suppl. SCR 400 ;Campaign for Judicial Accountabilityand Reforms v. Union of India & Anr. (2018) 1 SCC196 ; Asok Pande v. Supreme Court India through itsRegistrar and Ors, (2018) 5 SCALE 481 : [2018] 3SCR 337 – referred to.

Case Law Reference

In the Judgment of A.K. Sikri, J.

[2018] 12 S.C.R.

ACIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 789 of 2018.

Under Article 32 of the Constitution of India.

Dushyant Dave, Sr. Adv., Prashant Bhushan, Ms. Cheryl D’Souza, Ms. Priyanka, Amir Nabi, Omana Kuttan K., Advs. for theBPetitioner.K.K. Venugopal, AG, Tushar Mehta, ASG, Rohit Bhat, Adv. forthe Respondents.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. The name of respondent No.2 is deletedCfrom the array of parties, inasmuch as, having regard to the nature ofsubmissions made during hearing, which would be taken note of at theappropriate place, respondent No.2 is not necessary party.

2. The petitioner herein, who is senior advocate practicing inthis Court and enjoys credible reputation in the profession as well as inDpublic, has filed this writ petition under Article 32 of the Constitution ofIndia. In this writ petition, he seeks this Court to clarify the administrativeauthority of the Chief Justice of India (for short, the ‘Chief Justice’) asthe Master of Roster and for laying down the procedure and principlesto be followed in preparing the Roster for allocation of cases.

E3. It may be mentioned at the outset that the petition acknowledgesand accepts the legal principles that the Chief Justice is the “Master ofRoster” and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. It is also conceded that adherence to thisprinciple, namely, the Chief Justice is the Master of Roster, is essentiallyto maintain judicial discipline and decorum. It is also stated that the ChiefFJustice is first among equals, meaning thereby all Judges of the SupremeCourt are equal with same judicial power, with Chief Justice as the seniormost Judge. At the same time, it is contended that this power is not to beused to assert any superior authority by the Chief Justice and the poweris to be exercised in manner that is fair, just and transparent. As theGMaster of Roster, it is also conceded that it is the Chief Justice who hasto decide as to which Bench will hear particular case. The apprehensionexpressed is that keeping in view the predisposition of particular Judges,the Chief Justice may assign cases to those Judges to achieve apredetermined outcome. This calls for, according to the petitioner, devising

more rational and transparent system of listing and re-allocation of thematters to avoid any such possibilities. As per the petitioner, the mattersneed to be listed by strictly following the provisions of the SupremeCourt Rules, 2013 (hereinafter referred to as the ‘Rules’). These Rules,no doubt, empower the Chief Justice to allocate certain cases byexercising his discretionary power. The petitioner submits that in orderto ensure that such discretion is exercised in fair manner, theexpression ‘Chief Justice’ should be interpreted to mean ‘Collegium’of first five Judges of the Supreme Court, as held by this Court in SupremeCourt Advocates-On-Record Association and Others v. Union ofIndia[1] (famously known as the “Second Judges’ case”). On theaforesaid edifice, the petitioner has prayed for the following directions:“(a) That this Hon’ble Court may be pleased to issue writ ofdeclaration or writ in the nature of declaration or any otherappropriate writ, order or direction holding and declaring thatlisting of matters must strictly adhere to the Supreme Court Rules,2013 and Handbook on Practice and Procedure and OfficeProcedure, subject to the following clarification:

i) The words ‘Chief Justice of India’ must be deemed tomean collegium of 5 senior judges of this Hon’ble Court.

(b) That this Hon’ble court may be pleased to issue writ ofdeclaration of writ in the nature of declaration or any otherappropriate writ, order or direction holding and declaring that theconsultation by the Registry Officials for listing purposes, if anywith the Hon’ble Chief Justice of India must include consultationwith such number of senior-most judges as this Hon’ble courtmay fix in the interest of justice.

(c) That this Hon’ble Court may be pleased to issue writ ofprohibition or writ in the nature of prohibition or any otherappropriate writ, order or direction prohibiting the Hon’ble ChiefJustice of India and concerned respondents from listing anymatter contrary to the Supreme Court Rules, 2013 and Handbookon Practice and Procedure and Office Procedure or picking andchoosing Benches for the purpose of listing contrary thereto, withthe above modification of replacing ‘Chief Justice of India’ withthe collegium of 5 senior most judges of this Hon’ble Court.

A(d) That this Hon’ble Court may Clarify that when matters arementioned for urgent hearing/listing, only date/time of hearingwould be fixed but the Bench to hear the matter would bedetermined in accordance with the Rules.

(e) That this Hon’ble Court may be pleased to grant such otherBand further relief as may be deemed fit in the facts andcircumstances of the case and as may be required in the interestsof justice.”

4. Mr. Dushyant Dave, learned senior counsel appearing for thepetitioner, submitted that in certain cases, instances whereof are givenin the writ petition, the manner in which matters are allocated to certainCBenches reflect that either there was no strict adherence to the Rules orthe transparency was lacking. He, however, at the outset, made it clearthat the petitioner does not seek to question the validity of any judicialorders and/or judgments which have been rendered in those cases or inother cases. The petition is confined to the scope and ambit of theDpowers of the Chief Justice in listing matters and to seek declarationthat the power must be exercised lawfully and on objective consideration,thereby eschewing any subjective considerations. The entire thrust ofhis submissions was, therefore, to suggest the ways and means forachieving the same. In this behalf, he advanced the following propositions:

(a) Constitution of India expressly confers powers on the SupremeECourt under Article 145 to make Rules “for regulating generally thepractice and procedure of the court” with the approval of thePresident. Such Rules may include, ‘rules as to the procedure for hearingappeals and other matters pertaining to appeals including the time withinwhich appeals to the Courts are to be entered’. Sub-Articles (2) and (3)Fthereunder fix minimum number of judges to sit for any purpose includingfor deciding case involving substantial question of law as to theinterpretation of the Constitution or Reference under Article 143.

Article 124 establishes and constitutes the Supreme Court byproviding, ‘there shall be Supreme Court of India consisting of aGChief Justice and, until Parliament by law prescribes larger numberof not more than seven other Judges (original)’.

Thus, the expression ‘Supreme Court’ includes the Chief Justiceand other Judges of the Court. The power to frame Rules under Article145 is, therefore, conferred upon the entire Court, which power includespower to frame the Roster and direct hearing/ listing of matters.H

(b) Thus, although the Chief Justice is the Master of the Rollunder the convention, the Constitution has departed from the conventionalScheme to confer power upon the supreme Court.

(c) The expression ‘Chief Justice’ has been interpreted by aConstitution Bench of this Court in S.P. Gupta v. Union of India andAnother[2] (known as the “First Judges’ case”) to mean ‘Collegium’.This was done to ensure guard against the absolute power beingconferred upon the Chief Justice alone. It was observed in the saidjudgment as follows:

“31...We are all human beings with our own likes and dislikes, ourown predelictions and prejudices and our mind is not socomprehensive as to be able to take in all aspects of question atone time and moreover sometimes, the information on which webase our judgments may be incorrect or inadequate and ourjudgment may also sometimes be imperceptibly influenced byextraneous or irrelevant considerations. It may also be noticedthat it is not difficult to find reasons to justify what our bias orpredeliction or inclination impels us to do. It is for this reason thatwe think it is unwise to entrust power in any significant orsensitive area to single individual, howsoever high or importantmay be the office which he is occupying. There must be checksand controls in the exercise of every power, particularly when it isa power to make important and crucial appointments and it mustbe exercisable by plurality of hands rather than be vested in asingle individual...”

This principle has been subsequently followed by this Court in theSecond and Third Judges’ case.

The interpretation so canvassed by this Court must equally applyin respect of the power, if any, exclusively claimed by the Chief Justiceas the Master of the Roster. It is well settled that in statute particularexpression must receive the same and consistent meaning.

(d) Functions as ‘framing of Roster’ and ‘listing of importantand sensitive matters’ are extremely crucial and cannot be left to thesole discretion of the Chief Justice as per the law laid down in the FirstJudges’ case. In any case, such exclusive discretion is anathema to theconstitutional scheme. It is, therefore, imperative that the expression‘Chief Justice’ must mean the Supreme Court or, as held by this Court2(1981) Supp. SCC 87

CDE

Ain series of judgments, the ‘Collegium’ of five senior most judges, toprovide appropriate checks and balances against any possible abuse.

(e) The Rules framed under Article 145 of the Constitution conferpowers on the Registrar under Order III Rules 7 and 8 to deal withpreparation of lists and fixing of hearings of petitions, which would includeBappropriate listings. The matters be listed strictly as per these Rules.

5. To put it pithily, the submission is that once the Rules are framed,matters should be listed and fixed for hearing as per the provisions,particularly Order III Rules 7 and 8, thereof. Further, in any case, theexpression ‘Chief Justice’ has to assign the meaning by reading it as aC‘Collegium’ so that important and sensitive matters are assigned toparticular Benches by the Collegium of five senior most Judges, includingthe Chief Justice.

6. Mr. Dave elaborated the aforesaid submissions by arguing thatfairness in action was the hallmark of any administrative power andDwhile exercising the power as Master of Roster in allocating Benchto hear particular kind of cases, the Chief Justice performs his functionin an administrative capacity. He also submitted that applicability of theprinciple of bias is to be judged by applying the test of reasonableapprehension of bias in the mind of party, as held in the case of RanjitThakur v. Union of India and Others[3]. It was emphasised that theEConstitution of India has created an independent judiciary which is vestedwith the power of judicial review to determine the legality of administrativeactions and, thus, it becomes the solemn duty of the judiciary to keep theorgans of the State within the limits of the power conferred by theConstitution by exercising the power of judicial review which is theFsentinel on the qui vive. When such an important task is assigned to thejudiciary, power of listing the cases has to be exercised in fair andtransparent manner so as to instill confidence in the public at large thatthe matter shall be decided by the Court (or for that matter, by particularBench) strictly on legal principles to ensure that Rule of Law, which is apart of the basic structure of the Constitution, prevails. In this context, itGwas argued that the power to allocate the cases should not be with oneindividual and this could be taken care of by applying the principle laiddown in the Second Judges’ case wherein, while laying down thefoundation of the Collegium system for the appointment of Judges, itwas held:H3(1987) 4 SCC 611

“427. It is, therefore, realistic that there has to be room fordiscretionary authority within the operation of the rule of law, eventhough it has to be reduced to the minimum extent necessary forproper governance; and within the area of discretionary authority,the existence of proper guidelines or norms of general applicationexcludes any arbitrary exercise of discretionary authority. In sucha situation, the exercise of discretionary authority in itsapplication to individuals, according to proper guidelines or norms,further reduces the area of discretion; but to that extentdiscretionary authority has to be given to make the systemworkable. further check in that limited sphere is provided bythe conferment of the discretionary authority not to one individualbut to body of men, requiring the final decision to be taken afterfull interaction and effective consultation between themselves, toensure projection of all likely points of view and procuring theelement of plurality in the final decision with the benefit of thecollective wisdom of all those involved in the process. Theconferment of this discretionary authority in the highestfunctionaries is further check in the same direction. Theconstitutional scheme excludes the scope of absolute power inany one individual. Such construction of the provisions also,therefore, matches the constitutional scheme and theconstitutional purpose for which these provisions were enacted.450. It is obvious, that the provision for consultation with theChief Justice of India and, in the case of the High Courts, with theChief Justice of the High Court, was introduced because of therealisation that the Chief Justice is best equipped to know andassess the worth of the candidate, and his suitability forappointment as superior Judge; and it was also necessary toeliminate political influence even at the stage of the initialappointment of Judge, since the provisions for securing hisindependence after appointment were alone not sufficient for anindependent judiciary. At the same time, the phraseology usedindicated that giving absolute discretion or the power of veto tothe Chief Justice of India as an individual in the matter ofappointments was not considered desirable, so that there shouldremain some power with the executive to be exercised as check,

whenever necessary. The indication is, that in the choice of acandidate suitable for appointment, the opinion of the ChiefJustice of India should have the greatest weight; the selectionshould be made as result of participatory consultative processin which the executive should have power to act as mere checkon the exercise of power by the Chief Justice of India, to achievethe constitutional purpose. Thus, the executive element in theappointment process is reduced to the minimum and any politicalinfluence is eliminated. It was for this reason that the word‘consultation’ instead of ‘concurrence’ was used, but that wasdone merely to indicate that absolute discretion was not given toanyone, not even to the Chief Justice of India as an individual,much less to the executive, which earlier had absolute discretionunder the Government of India Acts.

xxxx

466. It has to be borne in mind that the principle ofnon-arbitrariness which is an essential attribute of the rule of lawis all pervasive throughout the Constitution; and an adjunct of thisprinciple is the absence of absolute power in one individual in anysphere of constitutional activity. The possibility of intrusion ofarbitrariness has to be kept in view, and eschewed, inconstitutional interpretation and, therefore, the meaning of theopinion of the Chief Justice of India, in the context of primacy,must be ascertained. homogenous mixture, which accords withthe constitutional purpose and its ethos, indicates that it is theopinion of the judiciary ‘symbolised by the view of the ChiefJustice of India’ which is given greater significance or primacy inthe matter of appointments. In other words, the view of the ChiefJustice of India is to be expressed in the consultative process astruly reflective of the opinion of the judiciary, which means that itmust necessarily have the element of plurality in its formation. Inactual practice, this is how the Chief Justice of India does, and isexpected to function so that the final opinion expressed by him isnot merely his individual opinion, but the collective opinion formedafter taking into account the views of some other Judges who aretraditionally associated with this function.

468. The rule of law envisages the area of discretion to be theminimum, requiring only the application of known principles orguidelines to ensure non-arbitrariness, but to that limited extent,discretion is pragmatic need. Conferring discretion upon highfunctionaries and, whenever feasible, introducing the element ofplurality by requiring collective decision, are further checksagainst arbitrariness. This is how idealism and pragmatism arereconciled and integrated, to make the system workable in asatisfactory manner. Entrustment of the task of appointment ofsuperior judges to high constitutional functionaries; the greatestsignificance attached to the view of the Chief Justice of India,who is best equipped to assess the true worth of the candidatesfor adjudging their suitability; the opinion of the Chief Justice ofIndia being the collective opinion formed after taking into accountthe views of some of his colleagues; and the executive beingpermitted to prevent an appointment considered to be unsuitable,for strong reasons disclosed to the Chief Justice of India, providethe best method, in the constitutional scheme, to achieve theconstitutional purpose without conferring absolute discretion orveto upon either the judiciary or the executive, much less in anyindividual, be he the Chief Justice of India or the Prime Minister.

480. The primacy of the judiciary in the matter of appointmentsand its determinative nature in transfers introduces the judicialelement in the process, and is itself sufficient justification forthe absence of the need for further judicial review of thosedecisions, which is ordinarily needed as check against possibleexecutive excess or arbitrariness. Plurality of judges in theformation of the opinion of the Chief Justice of India, as indicated,is another inbuilt check against the likelihood of arbitrariness orbias, even subconsciously, of any individual. The judicial elementbeing predominant in the case of appointments, and decisive intransfers, as indicated, the need for further judicial review, as inother executive actions, is eliminated. The reduction of the areaof discretion to the minimum, the element of plurality of judges information of the opinion of the Chief Justice of India, effectiveconsultation in writing, and prevailing norms to regulate the areaof discretion are sufficient checks against arbitrariness.”

A7. Mr. Dave also referred to the following observations ofJustice J.S. Verma (as His Lordship then was) in that very judgment:

“478. This opinion has to be formed in pragmatic manner andpast practice based on convention is safe guide. In mattersrelating to appointments in the Supreme Court, the opinion givenBby the Chief Justice of India in the consultative process has to beformed taking into account the views of the two seniormost Judgesof the Supreme Court. The Chief Justice of India is also expectedto ascertain the views of the senior-most Judge of the SupremeCourt whose opinion is likely to be significant in adjudging thesuitability of the candidate, by reason of the fact that he has comeCfrom the same High Court, or otherwise. Article 124(2) is anindication that ascertainment of the views of some other Judgesof the Supreme Court is requisite. The object underlying Article124(2) is achieved in this manner as the Chief Justice of Indiaconsults them for the formation of his opinion. This provision inDArticle 124(2) is the basis for the existing convention whichrequires the Chief Justice of India to consult some Judges of theSupreme Court before making his recommendation. This ensuresthat the opinion of the Chief Justice of India is not merely hisindividual opinion, but an opinion formed collectively by body ofmen at the apex level in the judiciary...”E8. Learned senior counsel also relied upon paragraph 44 of thejudgment in Special Reference No. 1 of 1998[4] (popularly known asthe “Third Judges’ case”) wherein the Court answered the questionsunder Reference by clarifying as follows:

“44. The questions posted by the Reference are now answered,Fbut we should emphasise that the answers should be read inconjunction with the body of this opinion:

xxxxxx

3. The Chief Justice of India must make recommendation toappoint Judge of the Supreme Court and to transfer ChiefGJustice or puisne Judge of High Court in consultation with thefour seniormost puisne Judges of the Supreme Court. Insofar asan appointment to the High Court is concerned, therecommendation must be made in consultation with the twoseniormost puisne Judges of the Supreme Court.

H4 (1998) 7 SCC 739

4. The Chief Justice of India is not entitled to act solely in hisindividual capacity, without consultation with other Judges of theSupreme Court, in respect of materials and information conveyedby the Government of India for non-appointment of Judgerecommended for appointment.”

9. Towing the aforesaid line, Mr. Dave proceeded to argue thatthe modern trend in all robust legal systems governed by democraticprinciples was to ensure that even administrative powers of the ChiefJustice must be shared with other senior Judges so that the power isexercised properly and validly. In support, the learned senior counselreferred to the system that prevails in the United Kingdom SupremeCourt, High Court of Australia (which is the apex court of that country),Supreme Court of Canada, German Federal Court and even EuropeanCourt of Human Rights and European Court of Justice.

10. Mr. Venugopal, learned Attorney General, in reply to theaforesaid arguments of the petitioner, submitted that the petitioner hasvirtually accepted the legal position to the effect that the Chief Justice isthe ‘Master of Roster’ and in that capacity he also has the authority toallocate the cases to different Benches/Judges of the Supreme Court.Therefore, the grievance, essentially, of the petitioner was about themanner in which such power is being exercised. However, at thesame time, the petitioner had also made it clear that he was not questioningparticular decisions rendered by particular Benches which were assignedsome of the important matters, pointed out the learned Attorney General.He submitted that the substance of the argument of the learned seniorcounsel for the petitioner was that in order to ensure that the cases areassigned in fair and transparent manner, the term ‘Chief Justice’ shouldbe interpreted to mean ‘Collegium’ of five senior most judges includingthe ‘Chief Justice’. Response of the learned Attorney General wasthat though such mechanism, as solution, was found out by this Courtin the judgments popularly known as Three Judges’ case(s) forappointment of Judges in the High Court as well as in the SupremeCourt, suggestion was totally impractical when it comes to discharge ofadministrative duties by the ‘Chief Justice’ in his capacity as the Masterof Roster. Strongly refuting this suggestion, he argued that such aninterpretation was not only impractical, it would even result in chaos ifday to day administrative work, including the task of constituting theBenches and allocating cases to the Benches, is allowed to be undertaken

Aby the ‘Collegium’. His submission was that such matters of constitutingthe Benches and allocating cases to the respective Benches has to beleft to the sole discretion of the ‘Chief Justice’ acting in his individualcapacity, for the smooth functioning of the Court, by reposing faith andtrust in the ‘Chief Justice’ who occupies the highest constitutional positionin the judiciary.B

11. We have bestowed serious consideration to the submissionsmade by the counsel on either sides. It may also be clarified at theoutset that this matter has not been treated as adversarial in nature.This Court would also like to place on record that it does not dispute thebona fides of the person like the petitioner, who enjoys considerableCrespectability, in filing this petition. This Court has considered the entirematter objectively and with great sense of responsibility. At the sametime, it also becomes our duty to decide the matter in accord with thelegal position that is contained in the Constitution and the Statutes andthe legal principles engrafted in the precedents of this Court having bindingDeffect.ROLE OFTHE ‘CHIEFJUSTICE’AS THE MASTER OFROSTER

12. There is no dispute, as mentioned above, that ‘Chief Justice’is the Maser of Roster and has the authority to allocate the cases toEdifferent Benches/Judges of the Supreme Court. The petitioner has beencandid in conceding to this legal position. He himself has gone to theextent of stating in the petition that this principle that ‘Chief Justice’ isthe Maser of Roster is essential to maintain judicial discipline and decorumand also for the proper and efficient functioning of the Court.FNotwithstanding this concession, it would be imperative to explain thislegal position with little elaborations, also by referring to some of thejudgments of this Court which spell out the scope and ambit of such apower.

13. The petitioner has himself, in the petition, referred to three-GJudge Bench in State of Rajasthan v. Prakash Chand & Ors.[5] heldthat the Chief Justice of the High Court is the Maser of Roster and healone has the prerogative to constitute the Benches of the Court andallocate cases to the Benches so constituted. The Court stated thus:

5 (1998) 1 SCC 1H

“59. From the preceding discussion the following broadconclusions emerge. This, of course, is not to be treated as asummary of our judgment and the conclusions should be readwith the text of the judgment:

(1) That the administrative control of the High Court vests in theChief Justice alone. On the judicial side, however, he is only thefirst amongst the equals.

(2) That the Chief Justice is the master of the roster. He alonehas the prerogative to constitute benches of the court andallocate cases to the benches so constituted.

(3) That the puisne Judges can only do that work as is allotted tothem by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, noJudge who is to sit singly can sit in Division Bench and noDivision Bench can be split up by the Judges constituting the benchthemselves and one or both the Judges constituting such bench sitsingly and take up any other kind of judicial business nototherwise assigned to them by or under the directions of the ChiefJustice.

(5) That the Chief Justice can take cognizance of an applicationlaid before him under Rule 55 (supra) and refer case to thelarger bench for its disposal and he can exercise this jurisdictioneven in relation to part-heard case.

(6) That the puisne Judges cannot “pick and choose” any casepending in the High Court and assign the same to himself orthemselves for disposal without appropriate orders of theChief Justice.

(7) That no Judge or Judges can give directions to the Registryfor listing any case before him or them which runs counter to thedirections given by the Chief Justice.”

14. The same principle in Prakash Chand’s casewas applied asregards the power of the ‘Chief Justice’ and in the matter of Campaignfor Judicial Accountability and Reforms v. Union of India & Anr.[6]five Judge Bench held:

6 (2018) 1 SCC 196

“6. There can be no doubt that the Chief Justice of India is thefirst amongst the equals, but definitely, he exercises certainadministrative powers and that is why in Prakash Chand [Stateof Rajasthan v. Prakash Chand, (1998) 1 SCC 1] , it has beenclearly stated that the administrative control of the High Courtvests in the Chief Justice alone. The same principle must applyproprio vigore as regards the power of the Chief Justice of India.On the judicial side, he is only the first amongst the equals. But, asfar as the Roster is concerned, as has been stated by thethree-Judge Bench in Prakash Chand [State of Rajasthan v.Prakash Chand, (1998) 1 SCC 1], the Chief Justice is theMaster of the Roster and he alone has the prerogative toconstitute the Benches of the Court and allocate cases to theBenches 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 tothe Supreme Court. We are disposed to think so. Unless such aposition is clearly stated, there will be utter confusion. Be it noted,this has been also the convention of this Court, and theconvention has been so because of the law. We have to make itclear without any kind of hesitation that the convention isfollowed because of the principles of law and because of judicialdiscipline and decorum. Once the Chief Justice is stated to be theMaster of the Roster, he alone has the prerogative to constituteBenches. Needless to say, neither two-Judge Bench nor athree-Judge Bench can allocate the matter to themselves ordirect the composition for constitution of Bench. To elaborate,there cannot be any direction to the Chief Justice of India as towho shall be sitting on the Bench or who shall take up the matteras that touches the composition of the Bench. We reiterate suchan order cannot be passed. It is not countenanced in law and notpermissible.

8. An institution has to function within certain parameters andthat is why there are precedents, rules and conventions. As far asthe composition of Benches is concerned, we accept theprinciples stated in Prakash Chand [State of Rajasthan v.

Prakash Chand, (1998) 1 SCC 1] , which were stated in thecontext of the High Court, and clearly state that the same shallsquarely apply to the Supreme Court and there cannot be anykind of command or order directing the Chief Justice of India toconstitute particular Bench.”

15. There is reiteration of this very legal position by anotherthree Judge Bench judgment of this Court in Asok Pande v. SupremeCourt of India through its Registrar and Ors.[7]

WHETHER THE EXPRESSION ‘CHIEF JUSTICE’ IN THESUPREME COURTRULES IS TO BE READ AS‘COLLEGIUM’ OF FIRST FIVE JUDGES?

16. In this aforesaid backdrop, we have to consider the principalsubmission of the petitioner viz. whether the expression ‘Chief Justice’in the Supreme Court Rules is to be read as ‘Collegium’ of first fiveJudges? As corollary, whether power of constituting the Benches andlisting the cases be exercised by the Collegium and not the Chief Justicealone? That is the entire edifice on which the petitioner’s case is builtupon. To begin with, we may remark that Asok Pande covers thisissue as well. That judgment was rendered in writ petition filed by thepetitioner under Article 32 of the Constitution wherein he had raisednumber of grievances. Apart from some personal grievances raised inthe said writ petition pertaining to some proceedings in the AllahabadHigh Court, relief which he had sought was for issuance of writ ofmandamus to the first respondent (Supreme Court of India) to evolvethe set of procedure for constituting the Benches and allotment ofjurisdiction to different Benches of the Supreme Court. In this behalf,he wanted that there should be specific rule in the Rules to the effectthat the three Judge Bench in the Chief Justice’s Court should consist ofthe Chief Justice and two senior-most Judges and also that Rules bemade to the effect that the Constitution Bench shall consist of fivesenior-most Judges or three senior most Judges and two junior-mostJudges. Similar mandamus was prayed for in respect of the AllahabadHigh Court to evolve identical set of Rules with respect to formation ofBenches.

17. While negating the aforesaid relief claimed by the saidpetitioner, the Court took note of the provisions of Article 145 of the

7 Writ Petition (Civil) No. 147 of 2018 decided on April 11, 2018

DEFG

AConstitution which empowers the Supreme Court to make Rules forregulating generally the practice and procedure of the Court, includingthe matters specifically mentioned in clause (I) of Article 145 of theConstitution, which Rules are to be made with the approval of thePresident of India. The Court also referred to Order VI of the Rules.This order deals with the constitution of division courts and powers of aBSingle Judge. Rule 1 thereof provides that it is the Chief Justice who isto nominate the Judges who would constitute Bench to hear case,appeal or matter. Where reference is made to larger Bench, theBench making the reference is required to refer the matter to the ChiefJustice who will constitute the Bench. Rule 1, thus, empowers the ChiefCJustice to constitute Division Bench as well as larger Bench. In casewhere the reference is made by Bench to larger Bench, again, whichJudges will constitute the said Bench is left to the discretion of the ChiefJustice. It nowhere says that the members of the Bench making referenceare to be the members of the larger Bench as well. Likewise, OrderXXXVIII of the Rules deals with applications for enforcement ofDfundamental rights under Article 32 of the Constitution. Rule 1 thereofmentions the manner in which petition under Article 32 of the Constitutionis to be dealt with. Likewise, Rule 12 deals with public interest litigation.

18. After incorporating the aforesaid provisions, the Court referredto the three Judge Bench judgment in the case of State of Rajasthan v.EPrakash Chand and Others[8] as well as the Constitution Bench judgmentin Campaign for Judicial Accountability and Reforms’s case, therelevant discussion in respect of which has already been elucidated above.On that basis, the relief claimed by the said writ petitioner was termedas ‘manifestly misconceived’ and the discussion that ensued in this behalfFreads as under:

“11. In view of this binding elucidation of the authority of theChief Justice of India, the relief which the petitioner seeks ismanifestly misconceived. For one thing, it is well settledprinciple that no mandamus can issue to direct body or authorityGwhich is vested with rule making power to make rules or tomake them in particular manner. The Supreme Court has beenauthorised under Article 145 to frame rules of procedure. Amandamus of the nature sought cannot be issued. Similarly, thepetitioner is not entitled to seek direction that Benches of this

H8 (1998) 1 SCC 1

Court should be constituted in particular manner or, as he seeks,that there should be separate divisions of this Court. The formerlies exclusively in the domain of the prerogative powers of theChief Justice.

12. Quite apart from the fact that the relief sought is contrary tolegal and constitutional principle, there is fundamental fallacy inthe approach of the petitioner, which must be set at rest. Thepetitioner seeks the establishment of binding precept under whicha three judge Bench in the Court of the Chief Justice must consistof the Chief Justice and his two senior-most colleagues alonewhile the Constitution Bench should consist of five senior-mostjudges (or, as he suggests, three ‘senior-most’and two‘junior-most’ judges). There is no constitutional foundation on thebasis of which such suggestion can be accepted. For one thing,as we have noticed earlier, this would intrude into the exclusiveduty and authority of the Chief Justice to constitute benches andto allocate cases to them.Moreover, the petitioner seems toharbour misconception that certain categories of cases orcertain courts must consist only of the senior-most in terms ofappointment. Every Judge appointed to this Court under Article124 of the Constitution is invested with the equal duty ofadjudicating cases which come to the Court and are assigned bythe Chief Justice. Seniority in terms of appointment has nobearing on which cases Judge should hear. It is settledposition that judgment delivered by Judge speaks for the court(except in the case of concurring or dissenting opinion). TheConstitution makes stipulation in Article 124(3) for theappointment of Judges of the Supreme Court from the High Courts,from the Bar and from amongst distinguished jurists.Appointment to the Supreme Court is conditioned upon thefulfilment of the qualifications prescribed for the holding of thatoffice under Article 124(3). Once appointed, every Judge of theCourt is entitled to and in fact, duty bound, to hear such cases asare assigned by the Chief Justice. Judges drawn from the HighCourts are appointed to this Court after long years of service.Members of the Bar who are elevated to this Court similarly arepossessed of wide and diverse experience gathered during the

course of the years of practise at the Bar. To suggest that anyJudge would be more capable of deciding particular cases or thatcertain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundationin principle or precedent. To hold otherwise would be to cast areflection on the competence and ability of other judges to dealwith all cases assigned by the Chief Justice notwithstanding thefact that they have fulfilled the qualifications mandated by theConstitution for appointment to the office.”

(emphasis added)

19. On the aforesaid analogy, the Court also rejected the prayerof the said petitioner in regard to the constitution of Benches in the HighCourts as well. Some of the discussion in this behalf, which may berelevant for our purposes as well, is reproduced below:

“14...The High Courts periodically publish roster of work underthe authority of the Chief Justice. The roster indicates theconstitution of Benches, Division and Single. The roster willindicate the subject matter of the cases assigned to each bench.Different High Courts have their own traditions in regard to theperiod for which the published roster will continue, until freshroster is notified. Individual judges have their own strengths interms of specialisation. The Chief Justice of the High Court hasto bear in mind the area of specialisation of each judge, whiledeciding upon the allocation of work. However, specialisation isone of several aspects which weigh with the Chief Justice. Anewly appointed judge may be rotated in variety of assignmentsto enable the judge to acquire expertise in diverse branches oflaw. Together with the need for specialisation, there is need forjudges to have broad-based understanding of diverse areas oflaw. In deciding upon the allocation of work and the constitutionof benches, Chief Justices have to determine the number ofbenches which need to be assigned to particular subject matterkeeping in view the inflow of work and arrears. The Chief Justiceof the High Court will have regard to factors such as thependency of cases in given area, the need to dispose of theoldest cases, prioritising criminal cases where the liberty of thesubject is involved and the overall strength, in terms of numbers,

of the court. Different High Courts have assigned priorities tocertain categories of cases such as those involving seniorcitizens, convicts who are in jail and women litigants. Thesepriorities are considered while preparing the roster. Impendingretirements have to be borne in mind since the assignment givento judge who is due to demit office would have to be entrustedto another Bench when the vacancy arises. These are some ofthe considerations which are borne in mind. The Chief Justice isguided by the need to ensure the orderly functioning of the courtand the expeditious disposal of cases. The publication of theroster on the websites of the High Courts provides notice tolitigants and lawyers about the distribution of judicial work underthe authority of the Chief Justice. This Court was constituted in1950. In the preparation of the roster and in the distribution ofjudicial work, some of the conventions which are adopted in theHigh Courts are also relevant, subject to modifications havingregard to institutional requirements.”

20. The aforesaid judgment of the three Judges’ Bench is bindingprecedent. This judgment, in no uncertain terms, holds that the ‘ChiefJustice’ in his individual capacity is the Master of Roster and it cannotread as Collegium of first three or five Judges. Thus, it is his prerogativeto constitute the Benches and allocate the subjects which would be dealtwith by the respective Benches.

’[9]21. The Constitution is silent on the role of the ‘Chief Justice.There is no specific provision relating thereto either in the Constitutionor even in any other law. The legal position contained in the aforesaidjudgments is based upon healthy practice and sound conventions whichhave been developed over period of time and that stands engrafted inthe Supreme Court Rules. In fact, it is dominated by two stereo-types.One, perpetuated by the common belief and widely endorsed andaccepted by all the stakeholders, is that the ‘Chief Justice’ occupies therole of ‘first among equals’. The phrase ‘among equals’ is generallyrelatable to the judicial function designed to emphasise the fact that voicesof the members of particular Bench, which may include ‘ChiefJustice’, are given equal weight and that in deciding cases, the opinionof the ‘Chief Justice’ also carries same weight and is no different fromthose of other Members of the Bench. Thus, in given case, there is

9 Article 124 of the Constitution merely says that there shall be Supreme Court ofIndia consisting of Chief Justice of India and thirty other Judges.

Apossibility that the view of the ‘Chief Justice’ may be minority viewand in that eventuality, the outcome of case would be what majoritydecides. The word ‘first’ in the aforesaid expression signifies only thefact that the ‘Chief Justice’ is the senior most Judge of the Court.

22. The second stereotype is that being the ‘Chief Justice’ andBsenior most Judge of the Court, he is empowered to exercise ‘leadership’on the Court. In this role, the ‘Chief Justice’ is expected to be thespokesperson and representative of the judiciary in its dealings with theExecutive, Government and the Community. For this purpose, the ‘ChiefJustice’ has general responsibility to ensure that the Court promoteschange and reform as appropriate. The judicial reforms, which is aCcontinuing process in order to ensure that there is real access to justice,also becomes the moral responsibility of the ‘Chief Justice’. Suchreforms in the administration of justice are not limited to the judicialaspects (i.e. how the cases need to be decided, case management andcourt management, speedy disposal etc.) but also include reforms on theDadministrative side of the legal system as well. Procedural reforms andimplementation thereof is an integral part of the judicial reform. Theultimate purpose is to dispense justice, which is the highest and noblestvirtue. Again, in this role, the ‘Chief Justice’ gets the authority andresponsibility for the administration of the Court, which gives him theultimate authority for determining the distribution of judicial work load.EIn Indian context, this power was given statutory recognition by Section214(3) of the Government of India Act, 1935 which reads as under:

“(2) Rules made under this section may fix the minimum numberof judges who are to sit for any purpose, so however that no caseshall be decided by less than three judges:F

Provided that, if the Federal Legislature makes such provision asis mentioned in this chapter for enlarging the appellate jurisdictionof the court, the rules shall provide for the constitution of specialdivision of the court for the purpose of deciding all cases whichwould have been within the jurisdiction of the court even if itsGjurisdiction had not been so enlarged.

(3) Subject to the provisions of any rules of court, the ChiefJustice of India shall determine what judges are to constitute anydivision of the court and what judges are to sit for any purpose.”

23. Under the Constitution, the Supreme Court is given the authorityto frame Rules for regulating generally the practice and procedure ofthe Court, including various subjects as enumerated in sub-Article (1) ofArticle 145. Supreme Court Rules, 2013 which have been framed inexercise of such power empowered the Chief Justice to constitute theBenches and list particular matters before such Benches. Similar powersare conferred upon the Chief Justice of the High Courts in the Rulesframed by respective High Courts for regulating its procedure.

24. At the same time, the power of the ‘Chief Justice’ does notextend to regulate the functioning of particular Bench to decide casesassigned to him once the cases are allocated to that Bench. Benchcomprising of puisne Judges exercise its judicial function withoutinterference from others, including the ‘Chief Justice’, as it is supposedto act according to law. Therefore, when particular matter is assignedto particular Bench, that Bench acquires the complete dominion overthe case.

25. From the aforesaid, it follows that the two most obviousfunctions of the ‘Chief Justice’ are to exercise judicial power as Judgeof the Court on equal footing as others, being ‘among equals’ and toassume responsibility of the administration of the Court.

26. Keeping in mind these postulates and the ratio of the aforesaidbinding judgments, it is difficult to accept the argument of the petitionerthat the expression ‘Chief Justice’ is to be read as ‘Collegium’ consistingof five senior-most Judges, including the Chief Justice. The judgmentscited by learned senior counsel appearing for the petitioner are in thecontext of Article 124 of the Constitution wherein the expression ‘ChiefJustice’ was read as Collegium, after examining the ConstitutionalScheme and the objective behind such provision meant for appointmentof Judges. The rationale provided in that context cannot be adoptedwhile interpreting Article 145 of the Constitution, the purpose whereof isaltogether different. We agree with the submission of the learnedAttorney General that the task of constitution of Benches and allocationof specific cases to those Benches, can more smoothly be performed bythe Chief Justice and discharge of such function by the Collegiumwould be unworkable and also lead to many practical difficulties.

27. As already taken note of above, the basis of this argument isthe judgment of this Court in Second Judges’ case which laid the

Afoundation of the Collegium system for the appointment of Judges. Therelevant passages from the said judgment, which are relied upon by thelearned senior counsel for the petitioner, have already been extractedabove. The Court accepted that there has to be room for discretionaryauthority within the operation of rule of law. At the same time, it wasemphasised that such discretion should be reduced to minimum extentBnecessary for proper governance, which can be achieved with theexistence of proper guidelines or norms of general application. In thishue, the Court deemed it proper that conferment of the discretionaryauthority should not be with one individual but to body of men and,thus, evolved the system of Collegium whereby the Chief Justice willChave benefit of full interaction and effective consultation with other seniorJudges, to ensure projection of all likely points and procuring the elementof plurality in the final decision with the benefit of collective wisdom ofall those involved in the process. However, it needs to be emphasisedthat the aforesaid resolution and concept of Collegium was innovated byjudicial interpretation in the context of appointment of Judges in theDconstitutional Courts, i.e. the Supreme Court as well as the High Courts.It is also to be borne in mind that as far as the Executive is concerned, itwill have virtually no role in such appointments, except the minimalistrole specifically delineated in the judgment. This kind of system whichis devised for appointment of Judges cannot be replicated when it comesEto the role of the Chief Justice as Master of Roster. We have to keep inmind that the Chief Justice, as the head of the Supreme Court of India,and the Chief Justices of the High Courts, have to perform many otherfunctions, on administrative side, in their capacities as Chief Justices.Framing of the Roster and constituting the Benches is one among them.In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’,Fit would be difficult to have smooth day to day functioning of the SupremeCourt, or for that matter the High Courts. We have already reproducedabove that part of the discussion from the judgment in Asok Pandewhich took note of various factors that are to be kept in mind for preparingthe Roster and indicating the constitution of Benches. Moreover, whenGit comes to assigning the cases to particular Bench, it has to beundertaken by the Chief Justice on daily basis in contrast with the meetingsof the Collegium for the purpose of appointment of Judges, which isinfrequent. Thus, meeting of Collegium for the purpose of assigning thecases to particular Bench on daily basis is clearly impracticable.

28. It is trite that ratio of judgment is what it decides and notwhat logically follows therefrom. The observations in the three Judges’case(s) are to be read in the context in which they are rendered. Oncethat is kept in mind, we arrive at conclusion that the ratio of thosejudgments 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 thatfunction such as ‘framing the Roster’ and ‘listing of important andsensitive matters’ are extremely crucial and cannot be left to the solediscretion of the Chief Justice is also met in Asok Pande,in the followingmanner:

“15. Underlying the submission that the constitution of Benchesand the allocation of cases by the Chief Justice must be regulatedby procedure cast in iron is the apprehension that absent such aprocedure the power will be exercised arbitrarily. In his capacityas Judge, the Chief Justice is primus inter pares: the first amongequals. In the discharge of his other functions, the Chief Justiceof India occupies position which is sui generis. Article 124(1)postulates that the Supreme Court of India shall consist of ChiefJustice of India and other Judges. Article 146 reaffirms theposition of the Chief Justice of India as the head of the institution.From an institutional perspective the Chief Justice is placed at thehelm of the Supreme Court. In the allocation of cases and theconstitution of benches the Chief Justice has an exclusiveprerogative. As repository of constitutional trust, the ChiefJustice is an institution in himself. The authority which is con-ferred upon the Chief Justice, it must be remembered, is vested ina high constitutional functionary. The authority is entrusted to theChief Justice because such an entrustment of functions isnecessary for the efficient transaction of the administrative andjudicial work of the Court. The ultimate purpose behind theentrustment of authority to the Chief Justice is to ensure that theSupreme Court is able to fulfil and discharge the constitutionalobligations which govern and provide the rationale for itsexistence. The entrustment of functions to the Chief Justice asthe head of the institution, is with the purpose of securing theposition of the Supreme Court as an independent safeguard forthe preservation of personal liberty. There cannot be apresumption of mistrust. The oath of office demands nothing less.”

A30. In this entire scheme, it needs to be highlighted that the judiciaryis assigned pivotal role under the Constitution. In Constitution Benchjudgment rendered only day before[10] in the case of Government ofNCT of Delhi v. Union of India & Another, the role of the Court asfinal arbiter of the Constitution and upholder of the rule of law is capturedin the following words:B

“4. This Court, being the final arbiter of the Constitution, in sucha situation, has to enter into the process of interpretation with thenew tools such as constitutional pragmatism having due regardfor sanctity of objectivity, realization of the purpose in the truestsense by constantly reminding one and all about the sacrosanctityCof democratic structure as envisaged by our Constitution,elevation of the precepts of constitutional trust and morality, andthe solemn idea of decentralization of power and, we must say,the ideas knock at the door to be invited. The compulsiveinvitation is the warrant to sustain the values of democracy in theDprescribed framework of law. The aim is to see that in theultimate eventuate, the rule of law prevails and the interpretativeprocess allows the said idea its deserved space, for when the ruleof law is conferred its due status in the sphere of democracy, itassumes significant credibility.

E5. We would like to call such method of understanding“confluence of the idea and spirit of the Constitution”, for it celebratesthe grand idea behind the constitutional structure founded on thecherished values of democracy.”

31 The Constitution makers, thus, reposed great trust in theFjudiciary by assigning it the powers of judicial review of not only theadministrative acts of the Government/Executive but even thelegislative acts of the Legislature. In the process, judiciary dischargesone of the most important functions, namely, the administration ofjustice. It does so by upholding the rule of law and, in the process,protecting the Constitution and the democracy. Our ConstitutionGguarantees free speech, fair trials, personal freedom, personal privacy,equal treatment under the law, human dignity and liberal democraticvalues. This bundle of non-negotiable rights and freedoms has to beprotected by the judiciary. For this reason, independence of judiciary is

10 Judgment dated July 4, 2018 in Civil Appeal No. 2357 of 2017 titled Government ofHNCT of Delhi v. Union of India & Another with other connected appeals.

treated as one of the basic features of the Constitution. Here, we maypoint out four major aspects of judicial status or performance, whichare: independence; impartiality; fairness; and competence.

32. Alexander M. Bickel had emphasised way back in 1962[11] thatthe judiciary is the least dangerous branch as it has neither the purse northe sword, by reproducing following words of wisdom of AlexanderHamilton[12]:

“Whoever attentively considers the different departments of powermust perceive, that, in government in which they are separatedfrom each other, the judiciary, from the nature of its functions, willalways be the least dangerous to the political rights of theConstitution; because it will be least in capacity to annoy orinjure them. The Executive not only dispenses the honors, butholds the sword of the community. The legislature not onlycommands the purse, but prescribes the rules by which the dutiesand rights of every citizen are to be regulated. The judiciary, onthe contrary, has no influence over either the sword or the purse;no direction either of the strength or of the wealth of the society;and can take no active resolution whatever. It may truly be saidto have neither FORCE nor WILL, but merely judgment; andmust ultimately depend upon the aid of the executive arm evenfor the efficacy of its judgments.”

33. The judiciary even without the sword or the purse, remainsthe guardian of the Constitution. Its sole strength lies in the publicconfidence and the trust. A.S. Anand, J. (as His Lordship then was,later the Chief Justice of India) highlighted this aspect (though in thecontext of contempt jurisdiction of the Court) in State of Rajasthan v.Prakash Chand & Ors.[13] in the following words:

“The virtue of humility in the Judges and constant awarenessthat investment of power in them is meant for use in publicinterest and to uphold the majesty of rule of law, would to largeextent ensure self restraint in discharge of all judicial functionsand preserve the independence of judiciary. It needs no emphasisto say that all actions of Judge must be judicious in character.

Erosion of credibility of the judiciary, in the public mind,

11in his book ‘The Least Dangerous Branch’

12in the 78th Federalist, “The Judges as Guardians of the Constitution”.13(1998) 1 SCC 1

1002SUPREME COURT REPORTS

Afor whatever reasons, is greatest threat to theindependence of the judiciary. Eternal vigilance by the Judgesto 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 unlimitedpowers to any one including the Judge of all levels. The societalBperception of Judges as being detached and impartialreferees is the greatest strength of the judiciary and everymember of the judiciary must ensure that this perceptiondoes not receive set back consciously or unconsciously.Authenticity of the judicial process rests on public confidence andCpublic confidence rests on legitimacy of judicial process. Sourcesof legitimacy are in the impersonal application by the Judge ofrecognised objective principles which owe their existence to asystem as distinguished from subjective moods, predilections,emotions and prejudices.”

D34. We may also quote the following passage from S.P. Gupta(per Pathak, J.):

“While the administration of justice draws its legal sanction fromthe Constitution, its credibility rests in the faith of the people.Indispensable to that faith is the independence of the judiciary. AnEIndependent and impartial judiciary supplies the reason for thejudicial institution, it also gives character and content to theconstitutional milieu.”

35. In the same decision, J.S. Verma, J. echoed the aforesaidsentiments with the following message:F

“The role of the Judiciary under the Constitution is pious trustreposed by the people. The Constitution and thedemocratic-polity thereunder shall not survive, the day Judiciaryfails to justify the said trust. If the Judiciary fails, the Constitutionfails and the people might opt for some other alternative.”

36. Thus, the faith of the people is the bed-rock on which theedifice of judicial review and efficacy of the adjudication are founded.Erosion of credibility of the judiciary, in the public mind, for whateverreasons, is greatest threat to the independence of the judiciary. We livein an age of accountability. What is required of Judges is changing.

Judgments of the Courts are widely discussed, debated and evencriticised. In this age of technology, open society and liberal democracycoupled with varied nature of cases raising complex issues which aredecided by the Courts, including ‘hard cases’ any outcome whereofmay be susceptible to criticism, as both views may appear to be equallystrong. In that sense, judiciary walks the tightrope of independence. Ithas also become regular feature that even laymen, who areconstitutionally illiterate, enter such debate and evaluate the outcomesinfluenced by their emotions, rather than on legal or constitutionalprinciples.

37. The world is changing fast. However, the fundamental qualitieswhich the public seek in Judge have remained the same, as these areeternal verities, which will never change. These are wisdom, patience, asense of practical reality, fairness and balance, independence of mindand knowledge of law, moral courage or fortitude, and total commitmentthat justice should be administered according to law. At the end of theday, it is the virtue of righteousness, impartiality, objectivity and scholarshipwhich Judge commands to ensure respectability to his judgment.38. In the aforesaid backdrop, role of the ‘Chief Justice’ as Masterof Roster also assumes much significance. Each ‘Chief Justice’performs his role by consultation and consensus, after taking into accountvarious factors including individual Judges’ interests and abilities, theirspecialisation in particular area, their capacity to handle particular typeof cases and many other relevant considerations. However, the exerciseof such power with wisdom has to be left to the ‘Chief Justice’ whois 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 havedifferent styles of functioning and the practices have been developed invarious countries keeping in view the structure of the Courts[14]. Eventhe procedural characteristics of litigation are different. Therefore, systemprevalent and developed in one jurisdiction cannot be mechanically adoptedby judicial system in other countries. At the same time, there is no harmin adopting those healthy practices which have been developed in foreignjurisdictions and which can be easily adopted because of their universal

14 For example, in U.S., all Judge of the Supreme Court sit as Court and not inBenches.

Aapplication. After all, no system is full-proof. There is always scopefor improvement. Reforms in the administration of justice, whether onjudicial side or administratively, is continuing process. We all learnfrom experiences and strive to do better.

40. Of course, it goes without saying that the matters need to beBlisted and assigned to the Benches in accordance with the SupremeCourt Rules, 2013 and Handbook of Practice and Procedure.

41. Having regard to the aforesaid principles laid down in thebinding precedents, it is difficult to accept the prayer of the petitionerthat the expression ‘Chief Justice’ appearing in the Supreme Court Rules,C2013 or in Article 145 of the Constitution be read as ‘Collegium’ of fivesenior most Judges for the purpose of allocating the matters. At thesame time, we feel that debate generated as result has served itspurpose. While saying so, we have in mind the following words ofHon’ble Justice Tun Mohamed Dzaiddin Abdullah, the then Chief Justiceof Malaysia[15]:D

“As judges, we are used to hearing, marshalling and evaluatingevidence.

In fact, when it comes down to brass tacks, that is just what wejudges are perennially obliged to do throughout the better part ofEour life on the Bench. Every decision we make is momentous,for it touches the lives and fortunes of other people.

Thus it is good, therefore from time to time, like today, and thenext three days, for us to take hard look at ourselves so as toensure that it is responsibility which we are discharging.”

F42. We conclude by extracting following message conveying deepmeaning, written in the ‘Introduction’ to the just released book authoredby eminent lawyer Fali S. Nariman[16]:

“Second: Institutions created by our Constitution, like the SupremeCourt, are, and will always remain, greater than the men andGwomen for the time being in-charge. And this is why our Courtwill always remain ‘Hon’ble’ as is the nine-judge Bench of the-

15 Taken from Welcoming Address given by him in workshop on “judicialaccountability” organised by Commonwealth Lawyers’ Association in Kuala Lumpurin April, 2002.16H God Save the Hon’ble Supreme Court and Other Opinions.

more-than-two-hundred-year-old Supreme Court of the UnitedStates, which is reminded by the Clerk of the Court on each daythat it sits (proclaimed in loud voice before the justices taketheir seats): “God save the United States and this Hon’ble Court”,and

Third: As for the men and women on the Bench for the time beingin-charge, one can almost hear them say (as Edmund Burke had said inan election speech way back in 1780):

“Applaud us when we run; console us when we fall; cheer uswhen we recover; but let us pass on-for God’s sake, let us passon”.

43. We, thus, dispose of the writ petition without any furtherdirections.

ASHOK BHUSHAN, J. 1.I have advantage of going throughthe draft judgment of my esteemed brother Justice A.K. Sikri. I entirelyagree with the opinion expressed by my brother, however, looking to theimportance of the issues raised in the writ petition I also express myviews on the subject.

2.The petitioner, senior advocate of this Court and former LawMinister has filed this writ petition under Article 32 of the Constitutionpraying for following reliefs:-

“a) That this Hon’ble Court may be pleased to issue writ ofdeclaration or writ in the nature of declaration or any otherappropriate writ, order or direction holding and declaringthat listing of matters must strictly adhere to the Supreme CourtRules, 2013 and Handbook on Practice and Procedure andOffice Procedure, subject to the following clarification:

i) The words ‘Chief Justice of India’ must be deemed tomean collegium of 5 senior judges of this Hon’ble Court.

b)That this Hon’ble Court may be pleased to issue writ ofdeclaration or writ in the nature of declaration or any otherappropriate writ, order or direction holding and declaringthat the consultation by the Registry, Officials for listingpurposes, if any with the Hon’ble Chief Justice of India must

include consultation with such number of senior-most judgesas this Hon’ble Court may fix in the interest of justice,.

c) That this Hon’ble Court may be pleased to issue writ ofprohibition or writ in the nature of prohibition or any otherappropriate writ, order or direction prohibiting the Hon’bleChief Justice of India and concerned respondents from listingany matter contrary to the Supreme Court Rules, 2013 andHandbook on Practice and Procedure and Office Procedureor picking and choosing Benches for the purpose of listingcontrary thereto, with the above modification of replacing

‘Chief Justice of India’ with the collegium of 5 senior mostjudges of this Hon’ble Court.

d) That this Hon’ble Court may Clarify that when matters arementioned for urgent hearing/listing, only date/time ofhearing would be fixed but the bench to hear the matter wouldbe determined in accordance with the Rules.

e) That this Hon’ble Court may be pleased to grant such otherand further relief as may be deemed fit in the facts andcircumstances of the case and as may be required in theinterests of justice.”

3.The petitioner in the writ petition pleads that although the ChiefEJustice is the master of roster and has the authority to allocate cases todifferent benches/judges of the Supreme Court, but however the powerto exercise such authority cannot be used in such manner as to assertany superior authority by the Chief Justice. In this respect, it is relevantto reproduce the pleading of the petitioner in Paragraph 4 and Paragraph6 of the writ petition, which is to the following effect:-

“4. It is principle that has been settled by judicialpronouncements and conventions of the Hon’ble SupremeCourt that the Chief Justice of India is the master of the rosterand has the authority to allocate cases to different benches/judges of the Supreme Court. Adherence to this principle isessential to maintain judicial discipline and decorum and forthe proper and efficient functioning of the Court. However,the power to exercise such authority cannot be used in sucha manner as to assert any superior authority by the ChiefJustice. It is also well settled principle of jurisprudencethat the Chief Justice is only the first among equals.

6. roster declares what work is assigned to High Courtand Supreme Court Judges. ‘Master of the Roster’ refers tothe privilege of the Chief Justice to constitute Benches to hearcases. It is pre-requisite that this power must be exercisedin manner is that fair, just and transparent and in keepingwith the high standards of integrity desired from the office ofa Chief Justice of India.”

4. The petitioner refers to Three Judge Bench judgment inState of Rajasthan Vs. Prakash Chand & Ors., (1998) 1 SCC 1,wherein it was held that the Chief Justice of the High Court is the masterof the roster and he alone has the prerogative to constitute the benchesof the court and allocate cases to the benches so constituted. It is furtherpleaded in the writ petition that the writ petition raises questions relatingto the functioning of the Registry of the Supreme Court and the powersexercised by the Chief Justice of India, inter-alia, in “listing matters” soas to list matters of general public importance and/or of political sensitivitybefore only certain Benches contrary to the Supreme Court Rules,Handbook of procedure and conventions. Petitioner, however, specificallystates in Paragraph 14 of the writ petition that “present petition does notseek to question any judicial orders and/or judgments”. The petitionerhas made reference to certain cases, which according to petitioner reflectsand establishes gross abuse of powers. The petitioner in context ofabove pleading has prayed in the writ petition that the word ‘Chief Justiceof India’ must be deemed to mean collegium of five senior judges ofthis Hon’ble Court, the relief claimed in the writ petition as noted above,is to the above effect.

5.Shri Dushyant Dave, learned senior counsel assisted by ShriPrashant Bhushan, appearing for the petitioner submits that constitutionof benches being sensitive matter, it should not be allowed to or suchpower should not be entrusted only to the Chief Justice but as this Courthas held while interpreting Article 124 that recommendation forappointment of judges for the Supreme Court and the High Court shouldbe made by collegium consisting of Chief Justice and four senior judges,the same interpretation or principle should be applied while finalizing theroster. Formulation of roster should be entrusted to collegium consistingof Chief Justice and four senior judges. Learned senior counsel submitsthat the petitioner is not making any allegation and only endeavour is todevise system so that there be no handpicking of cases. This Court

Awhile interpreting Article 124 has relied on collective wisdom while makingrecommendation for appointment of judges, the same interpretation shouldbe applied in exercise of power by Chief Justice while formulating theroster. Alternatively, it is submitted that power to frame roster be givento entire Court and the entire Court can decide the principles for finalizingthe roster. Learned senior counsel for the petitioner has also referred toBvarious international practices, which is adopted in different countries inrespect of allocation of cases to different benches.

6.Shri K.K. Venugopal, learned Attorney General opposing thewrit petition submits that under the Constitution and the Rules framedthereunder, it is the Chief Justice, who is contemplated to take decisionCregarding allocation of cases and constitution of benches. It is submittedby learned Attorney General that the exercise of allocation of cases andframing of roster is an exercise, which cannot be taken by multiplepersons. He submits that there can be difference in members of collegiumregarding allocation of cases, which shall hamper the smooth functioningDof the Court. He submits that exercise of roster is entirely differentfrom exercise of making recommendation for appointment of judges ofthis Court. By participation of other judges, there is likelihood that conflictof interest. Multiplicity of judges forming the roster will lead to chaos,hampering the smooth functioning of the Court. Learned AttorneyGeneral has referred to various judgments of this Court for the propositionEthat Chief Justice has been held to be master of roster and it is soleprerogative of Chief Justice to constitute benches and allocate cases todifferent benches for smooth functioning of the Court.

Shri Dushyant Dave replying the submission of learned AttorneyGeneral submits that the objective of writ petition is to evolve aFtransparent and non-arbitrary system for allocation of cases and formationof benches to allay any criticism of functioning of this Court. The objectof Writ Petition is not to make allegations against anyone or to questionany judgment of this Court; rather the entire endeavour is to improve thejudicial system to strengthen the independence of judiciary.G7.We have considered the submissions of the learned counsel forthe parties and have perused the records.

8.Before we consider the rival submissions raised by the learnedcounsel for the parties, it is relevant to notice the relevant constitutionalprovisions and the precedents on the subject. The Supreme Court ofH

India is successor of Federal Court, which was established in the BritishIndia by the Government of India Act, 1935. For the first time, the ChiefJustice of India was contemplated by Section 200 of the Government ofIndia Act, 1935. Prior to establishment of Federal Court, it was HighCourts in different States administering Justice. Against the decision ofthe High Court, appeal was contemplated before the Judicial Committeeof the Privy Council. For the purposes of this case, it is not necessary totrace the judicial history of Courts in this country.

9.Section 200(1) of the 1935 Act, which provided forestablishment and constitution of Federal Court was to the followingeffect:-

“200.-(1) There shall be Federal Court consisting of ChiefJustice of India and such number of other judges as HisMajesty may deem necessary, but unless and until an addresshas been presented by the Federal Legislature to theGovernor-General for submission to His Majesty praying foran increase in the number of judges, the number of puisnejudges shall not exceed six.”

10. Section 214 of the 1935 Act provided for rules of the Courtetc., which was as follows:

“214.-(1) The Federal Court may from time to court, with theapproval of the Governor-General in his discretion, makerules of court for regulating generally the practice andprocedure of the court, including rules as to the personspractising before the court, as to the time within which appealsto the court are to be entered, as to the costs of and incidentalto any proceedings in the court, and as to the fees to becharged in respect of proceedings therein, and in particularmay make rules providing for the summary determination ofany appeal which appears to the court to be frivolous orvexatious or brought for the purpose of delay.

(2) Rules made under this section may fix the minimum numberof judges who are to sit for any purpose, so however that nocase shall be decided by less than three judges :

Provided that, if the Federal Legislature makes such provisionas is mentioned in this chapter for enlarging the appellate

jurisdiction of the court, the rules shall provide for theconstitution of special division of the court for the purposeof deciding all cases which would have been within thejurisdiction of the court even if its jurisdiction had not beenso enlarged.

(3) Subject to the provisions of any rules of court, the ChiefJustice of India shall determine what judges are to constituteany division of the court and what judges are to sit for anypurpose.

(4) No judgment shall be delivered by the Federal Court savein open court and with the concurrence of majority of thejudges present at the hearing of the case, but nothing in thissubsection shall be deemed to prevent judge who does notconcur from delivering dissenting judgment.

(5) All proceedings in the Federal Court shall be in the EnglishDlanguage.”

11.Sub-section (3) of Section 214 specifically provided; that subjectto the provisions of any rules of court, the Chief Justice of India shalldetermine what judges are to constitute any division of the court andwhat judges are to sit for any purpose. The Chief Justice of India thusEwas exercising jurisdiction of constituting any division of the Court andnominating judges for sitting for different purposes.

12.Part V Chapter IV of the Constitution of India deals with theUnion Judiciary. Article 145 of the Constitution provides for the rules ofthe Court. Sub-article (1) of Article 145 provides that subject to theFprovisions of any law made by Parliament, the Supreme Court may fromtime to time, with the approval of the President, make rules for regulatinggenerally the practice and procedure of the Court, including varioussubjects as enumerated in sub-article (1). In exercise of power underArticle 145, Supreme Court has framed rules from time to time. TheSupreme Court Rules, 1950, the Supreme Court Rules, 1966 andGthereafter the Supreme Court Rules, 2013 have been framed in exerciseof power under Article 145(1). In the Supreme Court Rules, 2013, OrderVI deals with constitution of Division Courts and Powers of the SingleJudge. Rules 1 and 2 of Order VI are as follows:-

“1. Subject to the other provisions of these rules every cause,appeal or matter shall be heard by Bench consisting of notless than two Judges nominated by the Chief Justice.

2. Where in the course of the hearing of any cause, appeal orother proceeding, the Bench considers that the matter shouldbe dealt with by larger Bench, it shall refer the matter to theChief Justice, who shall thereupon constitute such Benchfor the hearing of it.”

13.The Chief Justice of India of the erstwhile Federal Court andthe Chief Justice of India as per the Constitution of India has beenexercising the jurisdiction of formulating the roster for convenientdistribution of Court’s business and constituting the benches from timeto time.

14.This Court had also occasion to consider time and again thenature and extent of the powers of the Chief Justice of India. For thepurposes of this case, it is useful to refer to few of the precedents in theabove respect. Three Judge Bench of this Court in State of RajasthanVs. Prakash Chand and Others, (1998) 1 SCC 1, which judgment hasalso been referred to and relied on by the petitioner, had elaboratelyconsidered the subject in issue. In regard to the power of the ChiefJustice in regard to constitution of benches, this Court after referring toPara 44 of Rajasthan High Court Ordinance, 1949 as well as Rule 54 ofthe Rules of the High Court of Judicature for Rajasthan laid downfollowing in Paragraph 10 :-

“10. careful reading of the aforesaid provisions of theOrdinance and Rule 54 (supra) shows that the administrativecontrol of the High Court vests in the Chief Justice of theHigh Court alone and that it is his prerogative to distributebusiness of the High Court both judicial and administrative.He alone, has the right and power to decide how the Benchesof the High Court are to be constituted: which Judge is to sitalone and which cases he can and is required to hear as alsoas to which Judges shall constitute Division Bench and whatwork those Benches shall do. In other words the Judges ofthe High Court can sit alone or in Division Benches and dosuch work only as may be allotted to them by an order of or

in accordance with the directions of the Chief Justice. Thatnecessarily means that it is not within the competence ordomain of any Single or Division Bench of the Court to giveany direction to the Registry in that behalf which will runcontrary to the directions of the Chief Justice. Therefore inthe scheme of things judicial discipline demands that in theevent Single Judge or Division Bench considers that aparticular case requires to be listed before it for valid reasons,it should direct the Registry to obtain appropriate orders fromthe Chief Justice. The puisne Judges are not expected toentertain any request from the advocates of the parties forlisting of case which does not strictly fall within the determinedroster. In such cases, it is appropriate to direct the counsel tomake mention before the Chief Justice and obtainappropriate orders. This is essential for smooth functioningof the Court. Though, on the judicial side the Chief Justice isonly the “first amongst the equals”, on the administrative sidein the matter of constitution of Benches and making of roster,he alone is vested with the necessary powers. That the powerto make roster exclusively vests in the Chief Justice and thata daily cause list is to be prepared under the directions of theChief Justice as is borne out from Rule 73, which reads thus:

“73. Daily Cause List.—The Registrar shall subject to suchdirections as the Chief Justice may give from time to timecause to be prepared for each day on which the Court sits,a list of cases which may be heard by the different Benchesof the Court. The list shall also state the hour at which andthe room in which each Bench shall sit. Such list shall beknown as the Day’s List.”

15.This Court in the above case has also referred to earlierjudgments of this Court in Inder Mani and Others Vs. MatheshwariPrasad and Others, (1996) 6 SCC 587 and different judgmentsrendered by different High Courts reiterating the same principles afterreferring to various judgments. After approving the view taken bydifferent High Courts in various cases, following was laid down inParagraph 23:-

“23. The above opinion appeals to us and we agree with it.Therefore, from review of the statutory provisions and thecases on the subject as rightly decided by various High Courts,to which reference has been made by us, it follows that noJudge or Bench of Judges can assume jurisdiction in acase pending in the High Court unless the case is allotted tohim or them by the Chief Justice. Strict adherence of thisprocedure is essential for maintaining judicial discipline andproper functioning of the Court. No departure from it can bepermitted. If every Judge of High Court starts picking andchoosing cases for disposal by him, the discipline in the HighCourt would be the casualty and the administration of justicewould suffer. No legal system can permit machinery of theCourt to collapse…………………”

16.This Court has recorded its conclusion in Para 59, which is tothe following effect:-

“59. From the preceding discussion the following broadCONCLUSIONS emerge. This, of course, is not to be treatedas summary of our judgment and the conclusions should beread with the text of the judgment:

(1) That the administrative control of the High Court vests inthe Chief Justice alone. On the judicial side, however, he isonly the first amongst the equals.

(2) That the Chief Justice is the master of the roster. He alonehas the prerogative to constitute benches of the court andallocate cases to the benches so constituted.

(3) That the puisne Judges can only do that work as is allottedto them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts,no Judge who is to sit singly can sit in Division Bench andno Division Bench can be split up by the Judges constitutingthe bench themselves and one or both the Judges constitutingsuch bench sit singly and take up any other kind of judicialbusiness not otherwise assigned to them by or under thedirections of the Chief Justice.

(5) That the Chief Justice can take cognizance of anapplication laid before him under Rule 55 (supra) and refera case to the larger bench for its disposal and he can exercisethis jurisdiction even in relation to part-heard case.

(6) That the puisne Judges cannot “pick and choose” anyBcase pending in the High Court and assign the same to himselfor themselves for disposal without appropriate orders of theChief Justice.

(7) That no Judge or Judges can give directions to the Registryfor listing any case before him or them which runs counter tothe directions given by the Chief Justice.

Xxxxxxxxxxxx”

17.There are series of judgments reiterating the same view asexpressed by this Court in State of Rajasthan (supra). In an earlierjudgment, Union of India and Another Vs. Raghubir Singh (Dead)By LRs. Etc., (1989) 2 SCC 754¸ Constitution Bench of this CourtDnoticed that as general rule of practice and convenience, the Courtshould sit in Divisions and each Division being constituted of Judgeswhose number may be determined by the exigencies of judicial need, bythe nature of the case including any statutory mandate relative thereto,and by such other considerations which the Chief Justice, in whom suchEauthority devolves by convention. In Paragraph 27, following has beenobserved:-

“…………………………..It cannot be doubted that in order topromote consistency and certainty in the law laid down by asuperior Court, the ideal condition would be that the entireFCourt should sit in all cases to decide questions of law, andfor that reason the Supreme Court of the United States doesso. But having regard to the volume of work demanding theattention of the Court, it has been found necessary in Indiaas general rule of practice and convenience that the Courtshould sit in Divisions, each Division being constituted ofGJudges whose number may be determined by the exigenciesof judicial need, by the nature of the case including anystatutory mandate relative thereto, and by such otherconsiderations which the Chief Justice, in whom suchauthority devolves by convention, may find mostHappropriate……………………………”

18.In D.C. Saxena Vs. Hon’ble The Chief Justice of India,(1996) 5 SCC 216, this Court held that it is the Chief Justice’s prerogativeto constitute benches and assign the judicial work and the judicial businesswould not hinge on the whim of litigant. In Paragraph 26, followinghas been laid down:-

“26. ………………………….The Chief Justice’s prerogativeto constitute benches and assignment of judicial businesswould not hinge on the whim of litigant.”

19.This Court further in State of Uttar Pradesh and Others Vs.Neeraj Chaubey and Others, (2010) 10 SCC 320 held that power ofChief Justice of allocation of business of the High Court flows not onlyfrom the provisions contained in sub-section (3) of Section 51 of theStates Reorganisation Act, 1956, but inheres in him in the very nature ofthings. Following was observed in Para 9 :-

“9. ………………If the Judges were free to choose theirjurisdiction or any choice was given to them to do whatevercase they may like to hear and decide, the machinery of theCourt would collapse and the judicial work of the Court wouldcease by generation of internal strife on account of hankeringfor particular jurisdiction or particularcase………………………”

20. It was further cautioned in the above case that in event thedistribution is not done by the Chief Justice of India, it may generateinternal strife on account of hankering for particular jurisdiction or aparticular case. The law laid down by this Court as is clear fromprecedents noted above, is that allocation of business of Court by theChief Justice not only flows from the Constitutional provisions but isheld to be prerogative of the Chief Justice and which is conventionfollowed from the very beginning. Apart from above, as noted above,the power of the Chief Justice to allocate cases flows from rules framedunder Article 145 of the Constitution of India.21. Now, we come to the submission which has been put forth byShri Dushyant Dave forcefully that Chief Justice of India while allocatingcases and forming benches for disposal of business of the Court shouldbe read as collegium. Shri Dave in support of his above argument takessustenance from the Constitution Bench judgment of this Court. In Judgescase i.e. S.P. Gupta Vs. Union of India, (1981) Supp. SC 87, which

Awas subsequently elaborated and clarified by second Judges case i.e.Supreme Court Advocates on Record Association and Others Vs.Union of India, (1993) 4 SCC 441 and third Judges case i.e. SpecialReference No. 1 of 1998, (1998) 7 SCC 739. He submits that whenChief Justice has been read as collegium in exercise of his constitutionalfunctions of making recommendation for appointment of judges, the sameBinterpretation be put on the word “Chief Justice” while he exercisespower of allocating business of the Court. It is useful to refer to judgmentof Seven Judges Bench of this Court in S.P. Gupta (supra) to recapitulatethe law as laid down in the above cases. This Court had occasion toconsider Article 124(2) of the Constitution, which contains provision forCappointment of judges of the Supreme Court and of the High Courts.Article 124(2) is as follows:-

124(2). Every Judge of the Supreme Court shall be appointedby the President by warrant under his hand and seal afterconsultation with such of the Judges of the Supreme CourtDand of the High Courts in the States as the President maydeem necessary for the purpose and shall hold office until heattains the age of sixty five years:

Provided that in the case of appointment of Judge otherthan the Chief Justice, the Chief Justice of India shall alwaysEbe consulted:(a) Judge may, by writing under his hand addressed to thePresident, resign his office;

(b) Judge may be removed from his office in the mannerprovided in clause (4).F22.Justice Bhagwati, speaking for majority in S.P. Gupta’s case(supra) while interpreting Article 124(2) laid down following in Paragraph31:-

“31. ……………The petitioners contended that the CentralGovernment may, if it thinks fit, consult one or more of theGJudges of the Supreme Court and of the High Courts or itmay not consult any and where it does not, the Chief Justiceof India will be the only constitutional functionary requiredto be consulted and in such case the Central Governmentmust accept the opinion of the Chief Justice of India as binding

upon it. We do not think this argument is well founded. In thefirst place it is not justified by the plain language of clause(2) of Article 124. This clause clearly provides for consultationas mandatory exercise and the only matter which is left tothe discretion of the Central Government is the choice of theJudge of the Supreme Court and the High Courts who may beconsulted. The words “as the President may deem necessary”qualify only the preceding words “such of the Judges of theSupreme Court and of the High Courts in the States.” Whichof the Judges of the Supreme Court and of the High Courtsshould be consulted is left to the discretion of the CentralGovernment but consultation there must be with one or moreof the Judges of the Supreme Court and of the High Courts.The Central Government must consult at least one Judge outof the Judges of the Supreme Court and of the High Courtsbefore exercising the power of appointment conferred byclause (2) of Article 124. This requirement is prescribedobviously because the Constitution-makers did not think itdesirable that one person alone, howsoever high and eminenthe may be, should have predominant voice in theappointment of Judge of the Supreme Court. But it seemsthat this requirement is not complied with in makingappointments on the Supreme Court Bench presumably undera misconception that it is not mandatory but only an optionalprovision. The result is that the Chief Justice of India alone isconsulted in the matter of appointment of Supreme CourtJudge and largely as result of healthy practice followedthrough the years, the recommendation of the Chief Justiceof India is ordinarily accepted by the Central Government,the consequence being that in highly important matter likethe appointment of Supreme Court Judge, it is the decisionof the Chief Justice of India which is ordinarily, for allpractical purposes final. But, as it happens, there are nocriteria laid down or evolved to guide the Chief Justice inthis respect nor is there any consultation with wider interests.This is, to our mind, not very satisfactory mode ofappointment, because wisdom and experience demand thatno power should be vested in single individual howsoeverhigh and great he may be and howsoever honest and well

meaning. We are all human beings with our own likes anddislikes, our own predelictions and prejudices and our mindis not so comprehensive as to be able to take in all aspects ofa question at one time and moreover sometimes, theinformation on which we base our judgments may be incorrector inadequate and our judgment may also sometimes beimperceptibly influenced by extraneous or irrelevantconsiderations. It may also be noticed that it is not difficult tofind reasons to justify what our bias or predeliction orinclination impels us to do. It is for this reason that we thinkit is unwise to entrust power in any significant or sensitivearea to single individual, howsoever high or important maybe the office which he is occupying. There must be checksand controls in the exercise of every power, particularly whenit is power to make important and crucial appointments andit must be exercisable by plurality of hands rather than bevested in single individual. That is perhaps the reason whythe Constitution-makers introduced the requirement in clause(2) of Article 124 that one or more Judges out of the Judgesof the Supreme Court and of the High Courts should beconsulted in making appointment of Supreme Court Judge.But even with this provision, we do not think that the safeguardis adequate because it is left to the Central Government toselect any one or more of the Judges of the Supreme Courtand of the High Courts for the purpose of consultation. Wewould rather suggest that there must be collegium to makerecommendation to the President in regard to appointment ofa Supreme Court or High Court Judge. The recommendingauthority should be more broad based and there should beconsultation with wider interests. If the collegium is composedof persons who are expected to have knowledge of the personswho may be fit for appointment on the Bench and of qualitiesrequired for appointment and this last requirement is absolutelyessential — it would go long way towards securing the rightkind of Judges, who would be truly independent in the sensewe have indicated above and who would invest the judicialprocess with significance and meaning for the deprived andexploited sections of humanity…………………………”

23.In Second Judges case, i.e. Advocates on Record Associationcase (supra), Justice J.S. Verma, speaking for majority laid downfollowing in Paragraph 427 and 478:-

“427. …………………………….A further check in thatlimited sphere is provided by the conferment of thediscretionary authority not to one individual but to body ofmen, requiring the final decision to be taken after fullinteraction and effective consultation between themselves, toensure projection of all likely points of view and procuringthe element of plurality in the final decision with the benefitof the collective wisdom of all those involved in the process.The conferment of this discretionary authority in the highestfunctionaries is further check in the same direction. Theconstitutional scheme excludes the scope of absolute powerin any one individual. Such construction of the provisionsalso, therefore, matches the constitutional scheme and theconstitutional purpose for which these provisions wereenacted.478. This opinion has to be formed in pragmatic mannerand past practice based on convention is safe guide. Inmatters relating to appointments in the Supreme Court, theopinion given by the Chief Justice of India in the consultativeprocess has to be formed taking into account the views of thetwo seniormost Judges of the Supreme Court. The Chief Justiceof India is also expected to ascertain the views of the senior-most Judge of the Supreme Court whose opinion is likely tobe significant in adjudging the suitability of the candidate,by reason of the fact that he has come from the same HighCourt, or otherwise. Article 124(2) is an indication thatascertainment of the views of some other Judges of theSupreme Court is requisite. The object underlying Article124(2) is achieved in this manner as the Chief Justice of Indiaconsults them for the formation of his opinion. This provisionin Article 124(2) is the basis for the existing convention whichrequires the Chief Justice of India to consult some Judges ofthe Supreme Court before making his recommendation. Thisensures that the opinion of the Chief Justice of India is notmerely his individual opinion, but an opinion formedcollectively by body of men at the apex level in the judiciary.

xxxxxxxxxxxxxxxxxxxxx”

A24.In Third Judges case, Special Reference No. 1 of 1998,(1998) 7 SCC 739, approving the construction as was put by this Courtin Second Judges case, Justice S.P. Bharucha, as he then was, in Para160 held that collegium should consist of the Chief Justice of India andfour senior most puisne judges of the Supreme Court. In Para 44,following answers were recorded:-B

“44. The questions posed by the Reference are now answered,but we should emphasise that the answers should be read inconjunction with the body of this opinion:

1. The expression “consultation with the Chief Justice ofIndia” in Articles 217(1) and 222(1) of the Constitution ofIndia requires consultation with plurality of Judges in theformation of the opinion of the Chief Justice of India. Thesole individual opinion of the Chief Justice of India does notconstitute “consultation” within the meaning of the saidarticles.

xxxxxxxxxxxxxxx

3. The Chief Justice of India must make recommendation toappoint Judge of the Supreme Court and to transfer ChiefJustice or puisne Judge of High Court in consultation withthe four seniormost puisne Judges of the Supreme Court.Insofar as an appointment to the High Court is concerned,the recommendation must be made in consultation with thetwo seniormost puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in hisFindividual capacity, without consultation with other Judgesof the Supreme Court, in respect of materials and informationconveyed by the Government of India for non-appointmentof Judge recommended for appointment.”

25.The word “Chief Justice” in Article 124 was read as collegiumin Second and Third Judges case looking to the constitutional schemeGand constitutional objective as perceived by the above provision. Article124(2) expresses constitutional provision of consultation by the Presidentin such of judges of Supreme Court and the High Courts, as the Presidentmay deem necessary.

26.The proviso contains specific requirement of consultation withthe Chief Justice of India in case of appointment of judges other than theChief Justice. Article 124 reveals thus two necessary ingredientsregarding consultation, i.e. (i) Chief Justice of India shall always beconsulted in case of appointment of judges other than the Chief Justice;(ii) the President shall make appointment after consultation with such ofthe judges of the Supreme Court and of the High Courts in the States asthe President may deem necessary. In addition to consultation with theChief Justice of India, consultation with other judges was specificallymade part of the Constitutional scheme. This Court in Second Judgescase and Third Judges Case taking note of the above constitutional schemehas read the word “Chief Justice” as collegium. Thus, the reason forreading the word “Chief Justice” as collegium in Article 124 hasconstitutional basis as elaborated in Second Judges case and Third JudgesCase.

27.With regard to procedure and practice of Supreme Court, Article145 empowers the Supreme Court to frame rules with the approval ofthe President. The word practice and procedure of the Court are wideenough to include practice and procedure relating to preparation of rosterand allocation of cases. The Rules framed by Supreme Court underArticle 145 specifically refers the Chief Justice in Chapter VI as notedabove, the Chief Justice, who is to nominate the bench for hearing everycase, appeal or matter. There is no indication in any of the constitutionalprovisions or rules framed thereunder that for allocation of cases andformation of benches, Chief Justice should be read as collegium. Forreading Chief Justice as collegium, under Article 124, there was aconstitutional basis as observed above. This Court had also on severaloccasions, noticed and expressed reasons for holding that it is the onlyprerogative of the Chief Justice to allocate cases and nominate the bench.This Court in State of Uttar Pradesh and others Vs. Neeraj Chaubeyand Others (supra) has made following weighty observations:-

“9. ………………If the Judges were free to choose theirjurisdiction or any choice was given to them to do whatevercase they may like to hear and decide, the machinery of theCourt would collapse and the judicial work of the Court wouldcease by generation of internal strife on account of hankeringfor particular jurisdiction or particularcase………………………”

A28.The submission of learned Attorney General is that allocationof cases and constitution of benches, if it is given in the multiple hands,there shall be differences and hurdles in smooth distribution of work.We entirely agree with the above submission of learned Attorney General.We are thus unable to accept the submission of learned senior counselfor the petitioner that in allocating cases and formulating benches of theBSupreme Court, the word “Chief Justice” should be read as collegium,which submission is unfounded and is rejected.

29.It is submitted by Shri Dave that in the Constitution whereasChief Justice was to exercise any power individually, said provisionshave been specifically included. He has referred to Article 130 of theCConstitution which provides:

“130. Seat of Supreme Court.- The Supreme Court shall sit inDelhi or in such other place or places, as the Chief Justice ofIndia may, with the approval of the President, from time totime, appoint.”D

He has further referred to Article 146 which provides that theappointments of officers and servants of the Supreme Court shall bemade by the Chief Justice of India or such other Judge or officer of theCourt as he may direct. He has referred to sub-clause (2) of Article146, which empowered the Chief Justice of India or some other JudgeEor officer of the Court authorised by the Chief Justice of India to makerules regarding conditions of service of officers and servants of theSupreme Court subject to provision of any law made by the President.There is no doubt that above provision of the Constitution provides forthe Chief Justice to exercise particular powers.

30. The submission that Constitution does not specifically mentionChief Justice to exercise power of allocation of cases and constitutionof Benches, hence, Chief Justice is not empowered to do the same, isnot valid submission.Under the constitutional scheme itself ascontained in Article 145, the practice and procedure of the SupremeGCourt is to be regulated by the rules made by the Supreme Court withapproval of the President.

31.As noted above, rules framed under Article 145 specificallyempower the Chief Justice to nominate Benches for hearing cases orappeal. Non-containing of any specific provision in the Constitutionempowering the Chief Justice to frame the roster to allocate the cases isH

inconsequential since the entire subject was to be covered by rules madeunder Article 145.

32.In considering the submissions raised in this case, we arereminded of prophetic words of Mr. Justice Holmes in NorthernSecurities Co. v. United States, 48 LAWYERS’ EDITION U.S. 196(1903). Holmes, J. said:

“Great cases, like hard cases, make bad law. For great casesare called great, not by reason of their real importance inshaping the law of the future, but because of some accidentof immediate overwhelming interest which appeals to thefeelings and distorts the judgment. These immediate interestsexercise kind of hydraulic pressure which makes whatpreviously was clear seem doubtful, and before which evenwell settled principles of law will bend.”

33. Our views as expressed above are fortified by recentConstitution Bench judgment of this Court in Campaign for JudicialAccountability and Reforms v. Union of India & Anr., (2018) 1 SCC196 and three Judge Bench judgment of this Court dated 11.04.2018 inWrit Petition (C) No.147 of 2018, Asok Pv. ande Supreme Court Indiathrough its Registrar and Ors., (2018) 5 SCC Scale 481.

34. Shri Dave also raised an alternate submission; that allocationof cases and constitution of benches should be undertaken by the entireCourt. He submitted that all the Judges can sit together and formulatethe procedure for constitution of Benches. The rules framed by theSupreme Court under Article 145 are the rules made by the Court andwhen the rules made by the Court specifically empowers the Chief Justiceto nominate Benches for hearing cause or appeal or matter, which hasbeen conventionally the prerogative of the Chief Justice. The submission,that full Court should allocate cases and constitute the Benches, runcounter to the constitutional scheme read with rules framed under Article145. We, thus, are not impressed by the submission of Shri Dave that theroster should be prepared by the entire Court.

35.In so far as submission made by Shri Dave that in allocationand listing of cases the Supreme Court Rules, 2013 have to be followed,no exception can be taken to the above submission. When the statutoryrules are framed the entire business of the Court which is covered bythe Rules has to be dealt accordingly.

A36. Law settled by this Court in large number of cases as noticedabove as well as judgments of three-Judge Bench and ConstitutionBenches noted above are binding on us and settled law cannot be unsettledon the premise on which the entire writ petition is founded.

37. Shri Dave during his submission has also referred to theBhandbook on “practice and procedure and office procedure (2017)”.The handbook is compilation of practice and procedure and officeprocedure for guidance of Registry. He has referred to Chapter V –Powers, Duties and Functions of the Registrar, Chapter VI – Roster,Chapter XIII – Listing of Cases. The above handbook is written guidefor smooth transaction of the business of the Court. Various instructionsCenumerated in different Chapters provide for the conduct and businessof the Court in orderly manner with certainty, there cannot be any disputethat when procedure is laid down to be followed by officials of theSupreme Court, all business is to be transacted in the said manner. Asnoted above, for the purposes of this case, we need not dwell into listingDof some cases as enumerated in the writ petition. Learned counsel forthe petitioner candidly submitted that petitioner is not questioning anyorder or judgment referred to in the writ petition. The endeavour of thewrit petitioner is to find out an appropriate procedure for proper and fairdistribution of cases and constitution of Benches.

E38. Learned counsel for the petitioner has also referred to andrelied on various international practices. During the submission he hasreferred to practices pertaining to case assignment in United KingdomSupreme Court, High Court of Australia, Supreme Court of Canada andthe practice in United States Supreme Court. The practices and functionof each Court are different which has been evolved by time looking toFparticular background and set of facts. The practice of Court ripensinto convention by passage of time and rich heritage of conventionsare time tested which is followed by different Courts. The conventionsand practice of the Supreme Court are time tested which practice andconventions of this Court have ripened with time which need not to beGtinkered with or imitated from different international practices of differentCourts. As noted above, the law laid down by this Court is that; thepower of framing roster which inheres in the Chief Justice hasconstitutional and statutory backing and by convention it is treated asprerogative of the Chief Justice. We, thus, cannot import the internationalpractices in the constitutional and statutory scheme of this Court.H

39. Much emphasis is laid down by the learned counsel for thepetitioner that the procedure and manner of allocation of cases andformulation of Benches should be one which is accessible to public andthere should be objective criteria of exercise of the power by the ChiefJustice. Manner and procedure for exercising the power should be putin public domain to allay any kind of misapprehension and to instillconfidence in public in general. We have already noticed above that themanner and procedure for transaction of Court work is elaborately dealtwith Supreme Court Rules, 2013.

40. Further, handbook on practice and procedure and officeprocedure also laid down sufficient guidelines and elaboration of theprocedure which is to be followed in this Court. Thus, for transaction ofbusiness of the Court, there are elaborate rules and procedure and itcannot be said that procedure and practice of the Court is unguided andwithout any criteria.

41. We are, however, not unconscious of the fact that working ofany system is continuous process and each and every organisationendeavours to improve the working of its system suitable to circumstancesand the need. Improvement of functioning is always goal of everysystem and all organisations endeavour to improve the system, which isalways welcome steps. The Supreme Court cannot be an exception toabove objective and goal.

42. Before we close, we remind ourselves of following weightywords of Venkataramiah, J. in Judges’ case:

“1268. ........We are made to realise that we are all mortalswith all the human frailties and that only few know in thisworld the truth behind the following statement of Michel DeMontaigne: “Were I not to follow the straight road for itsstraightness, I should follow it for having found by experiencethat in the end it is commonly the happiest and the most usefultrack”. .............................But if the judiciary should be reallyindependent something more is necessary and that we haveto seek in the Judge himself and not outside. Judge shouldbe independent of himself. Judge is human being who isa bundle of passions and prejudices, likes and dislikes,affection and ill will, hatred and contempt and fear andrecklessness. In order to be successful Judge these elements

should be curbed and kept under restraint and that is possibleonly by education, training, continued practice and cultivationof sense of humility and dedication to duty. These curbscan neither be bought in the market nor injected into humansystem by the written or unwritten laws. If these things arethere even if any of the protective measures provided by theConstitution and the laws go the independence of the judiciarywill not suffer. But with all these measures being there still aJudge may not be independent. It is the inner strength ofJudges alone that can save the judiciary. The life of Judgedoes not really call for great acts of self-sacrifice; but it doesinsist upon small acts of self-denial almost every day. Thefollowing sloka explains the true traits of men with discretionwhich all Judges should possess:

[Let men trained in ethics or morality, insult or praise;let lakshmi (wealth) accumulate or vanish as she likes;let death come today itself or at the end of yuga(millennium), men with discretion will not deflect fromthe path of rectitude.)”F

43. The writ petition is disposed of with the observations as madeabove.

Ankit Gyan

Writ Petition disposed of.