Editor’s Note: In this article, the author discusses the recent decision of the Supreme Court over the question of unrestrained power of the Chief Justice of India in terms of roster allocation. The author suggests extending the reading of ‘consultation’ and CJI in Article 124(2) done by the Judges Cases to Article 145, so as to cover roster allocation by the same.

On Friday, Mr. Bhushan and Mr. Dave were certainly disappointed men as their prayer to seek reform into the Supreme Court’s roster allocation was lithely rejected. The Court would have us believe that there was only ostensible merit in their plea rather the genuine case lay with the status quo. However, the matter is not so deft.

It was argued that the term ‘Chief Justice of India’ (CJI) must be construed as ‘Collegium’ for allocation of cases to judges, in light of the constitutional interpretation in the Three Judges Cases. Therefore, the roster being determined by the CJI under the SC Rules should be determined by the Collegium. The court disavowed such an importation, holding that the scope of the precedents was confined to Article 124(2) (appointments to the Supreme Court) and did not extend to Article 145 (rules of the court). The rest of the judgment was a banal restatement of judicial integrity and how sui generis procedures were sufficiently pious.

The role of the CJI was only to constitute benches and allocate cases to it. Once allocation had been made, the CJI played no part in that case. It was accepted by Mr. Dave that the ‘Master of Roster’ had the authority to allocate the cases, and no questions were averred on the propriety of the decisions made on the basis of such allocation. It was conceded that the CJI had the power and the power’s exercise did not result in unjust outcomes. However, what was being contested was the arbitrary exercise of such powers. Mr. Dave was brawling with not one, but both hands tied at his back.

In order to demonstrate that the exercise of the power by the CJI was not arbitrary, the court blithely stated that there was ‘soft’ consultation with all judges. The Indian model informally gathered views of all before the final allocation. Such would have been an acceptable proposition, had the four Collegium judges not held the press conference and made the friction within the Court public in January. Their letter addressed to the CJI clearly demonstrated that ‘soft’ consultation was absent.

The Three Judges Cases were founded on the simple ground that ‘a solution can exist only if the problem does’. The problem did not lie in the conferral of the power, but in the unjust result of its arbitrary exercise. In judicial appointments the power’s exercise could be seen to give rise to unjust outcomes, especially in the emergency period with a ‘committed judiciary’. Therefore, the need was to expand ‘consultation’ to ‘concurrence’, and ‘CJI’ to ‘Collegium’. But in the roster allocation case it couldn’t be propositioned that the power’s exercise was leading to unjust outcomes. Doing that would have amounted to calling the judges prejudiced, at best, and contempt of court, at worst. This nervous predicament was the reason why it could not be principally argued that the interpretation of Article 124(2) must also apply to Article 145.

If no averment can be made on the integrity of a judge, then even a seemingly ‘fixed’ allocation shouldn’t result in injustice. At best, it could be the denial of lustrous cases to some judges but that doesn’t mean that the preferred judges are motivated to predetermined ends. If that is the case, then this great judicial uprising would be reduced to merely a squabble between zealous members of the bench.

In the court’s words itself, the threshold of institutional integrity in the judiciary is very high. There lies the catch. It need not be shown that the exercise of power necessarily resulted in unjust outcomes, but the very fact that an arbitrary exercise spells shadow on its integrity is enough for it to be cast out— “not only must justice be done; it must also be seen to be done”. The very fact that a power conferred upon a person is open to unfettered abuse should be enough to cast doubt over integrity. Unfortunately, this most important aspect was left out by the court, which was all too focused in demonstrating that no unjust outcomes existed.

Shreenath Khemka is a King’s Law Scholar at the University of Cambridge.