Date : 13/06/2023

Relevance – GS Paper 2 : Judiciary

Key Words – Ritu Chhabria v. Union of India, master of the roaster, CJI, interim order

Context –

• Recently, a Division Bench of the Supreme Court, in Ritu Chhabria v. Union of India, affirmed an undertrial’s right to be released on default bail in the event of the investigation remaining incomplete and proceeding beyond the statutory time limit.
• It frowned upon the practice of investigative agencies charge-sheeting an accused despite the investigation being unfinished.
• It held that the right to be released on bail will not be extinguished on the mere filing of a preliminary charge-sheet.
• It concluded that an accused’s right to seek default bail would be terminated only upon competition of the investigation within the statutory time limit.

What's recent decision regarding this –

• Subsequently, in a surprising turn of events, the Court of the Chief Justice of India (CJI) entertained a recall application moved by the Union of India against this judgment.
• It then passed an interim order directing courts to decide bail applications without relying on the decision laid down in Ritu Chhabria for a short period of time.
• In a nutshell, by stripping the decision of the Division Bench of its precedential value even if for a short while, the Court of the CJI indirectly stayed the decision despite not having any connection with the verdict.
• Ordinarily, the only recourse available to the Union of India was the filing of a review petition, which is usually decided by the same Bench.
• There was no scope of the review petition being entertained by the Court of the CJI. The only way the Court of the CJI could enter the fray would be if there was another Coordinate Bench seized of the same issue in a separate matter, expressing its disagreement with the ratio laid in Ritu Chhabria and referring it to the CJI for recommendation to a larger Bench.
• There was no scope for a recall application being filed against a judgment, that too before an altogether different Bench. Doing so is tantamount to bench fishing or forum shopping. Therefore, by entertaining an intra-court appeal within the Supreme Court as an additional mechanism against an order passed by a Bench that did not include the CJI, the Court of the CJI has effectively instituted a mechanism that is completely devoid of any legislative or constitutional backing.

Postion of CJI: First amongst equals

• Within the constitutional scheme of things, all judges of the Supreme Court are equal in terms of their judicial powers.
• However, the CJI enjoys special administrative powers such as constituting Benches and assigning matters and references for reconsideration of a larger Bench. The CJI is known as the ‘Master of the Roster.’ This is why he is regarded as ‘first amongst equals’ in relation to companion judges.

• But in any given Bench including the CJI, the vote or power given to the CJI is the same as that given to his companion judges. History is replete with examples of the CJI authoring a minority opinion of the Court.
• The most recent such order was the one passed by the Supreme Court in the Economic Weaker Sections quota dispute where the then CJI, Justice U.U. Lalit, along with Justice S. Ravindra Bhat authored the minority opinion of the Court. Most Commonwealth countries such as the U.K., Australia and Canada have this system in place. And countries which don’t, such as the U.S., instead have a system where all the judges collectively exercise power and render decisions since they sit en bloc.
• Thus, they reflect the collective strength of the Court and not of Benches, as is the case in India. In India, the legitimacy of the power of Master of the Roster has been hotly debated, and has been, from time to time, reaffirmed to the extent of administrative decisions for the smooth functioning of the Court. By no stretch of imagination does the present order of the CJI fall within the powers envisaged under the ‘Master of the Roster’ system.
• It is ironic that a judgment which emphasised on abiding by the statutory procedure for investigation and bail was effectively undone by a doubtful procedure that is completely alien to both the Constitution as well as the Supreme Court Rules.
• The interim order raises concerns because, in the near future, if the government is displeased with the order of one Bench, it can simply go before the CJI to get the decision stripped of all its legal sanctity instead of re-convincing the same Bench in a review.

Cause for concern

• Despite the administrative usefulness of the ‘Master of the Roster’ system, the many recorded instances of abuse are a cause for concern. Just five years ago, four senior judges of the Supreme Court alleged serious infirmities and irregularities in the administration and assigning of cases for hearing to Benches of the Court.
• The powers vested in the CJI by his virtue of being the Master of the Roster are unending. It is impractical to lay any limits on these powers, meant for the smooth administrative functioning of the Court.
• It is imperative that the CJI himself refrains from expanding his powers as Master of the Roster; the practice of constituting Benches and allocating cases should be completely computerised and left out of the hands of the CJI.
• The CJI’s powers as the Master of the Roster are meant only for administrative decision-making.
• The order has the effect of enlarging the powers of the CJI on the judicial side and of creating an unprecedented intra-court appellate mechanism within the Supreme Court in total disregard of the established procedure, which is a review petition.
• The instant order has also dulled the bright line prohibiting the Court of the CJI from assuming that it is superior to all other Benches.

International Experiences/Alternative Mechanism

• The highest court is the Supreme Court of the United States. It does not have to deal with the allocation of cases as all judges hear all cases which the court accepts.
• The court hears cases in a panel of nine Justices (i.e. en banc). It is however not necessary for all judges to be present at a hearing as the quorum to decide a case is six.
• Justices may also participate in a case by listening to audio recordings of the oral arguments and reading the transcripts.
• The Chief Justice of the US Supreme Court, therefore, has no choice in the question of which judges will hear a case.
• UK’s Supreme Court has 12 judges. The justices usually hear cases in a panel of five, although they have the potential to hear cases as a panel of seven or nine depending on the importance of the appeal. Cases are allocated on a random basis at the court, although either the President or Deputy President will sit on most cases, and in specialist areas, other judges with particular expertise may be selected. So in the UK, the choice is significantly constrained.
• The President of the Supreme Court of the United Kingdom is the head of the Supreme Court of the United Kingdom
• The Deputy President of the Supreme Court of the United Kingdom is the second most senior judge of the Supreme Court of the United Kingdom, after the President of the Supreme Court.

What should be the role of CJI and how cases can be allocated?

• CJI as the master of the roster has to exercise his powers reasonably, without giving scope for any justifiable criticism.
• He/She as the master of the roster should welcome any reasonable suggestions in this regard from his colleagues.
• The CJI is the first among equals and he is the captain who has to carry the whole team with him while enjoying their goodwill and support.
• A just and fair roster must be one that is divided subject-wise among judges according to their experience and expertise in those subjects. Politically sensitive matters should be before the five senior judges of the Supreme Court.
• Among them, the allocation of individual cases could be by random computer allocation and not by the individual decision.
• For other cases as well, if there is more than one judge dealing with a particular subject then cases belonging to that subject should be randomly allocated among the various judges to whom that subject has been allocated.

Source - The Hindu