Editor’s Note: In this blog post, against the backdrop of limited hearings being taken up by the Supreme Court owing to the pandemic, Abhinand Lagisetti critiques the manner of prioritisation adopted by the Registry of the Supreme Court. The author analyses the present norms being adopted and critiques the Registry’s prioritisation of matters that concern eminent personnel.
The Honourable Supreme Court of India, the custodian of our fundamental rights, is no stranger to the administrative concerns that tend to plague any large organization. The administrative mismanagement and the mammoth backlog of cases before the Supreme Court is well documented. Ironically, the organ of the Court responsible for all its administrative functions, the Supreme Court Registry, has managed to evade any scrutiny.
The Registry of the Supreme Court (“Registry”) is headed by its Secretary-General, who is further aided by 8 registrars and 1,770 employees. These officers of the Registry are appointed under Article 146 of the Indian Constitution. Order III Rule 7 of the Supreme Court Rules 2013 stipulates that the Registry shall keep a list of all cases pending before the Court and shall prepare a list of all cases ready for hearing at the beginning of each term, week and day. The Registry has other additional functions such as keeping custody of Court records and amending plaints but its primary function is to determine when a particular case shall be heard and who shall hear it. Only the Chief Justice (“CJI”), using her/his powers as the ‘Master of the Roster’, can amend the schedule and allotment as made by the Registry. Therefore, the CJI and Registry have complete discretion with respect to the scheduling and allotment of cases.
In recent times, there have been two kinds of claims with respect to the malfunctioning of the Registry and CJI’s allotment and listing duties. The first is the abuse of the CJI’s administrative duties as the ‘Master of the Roster’ and the selective allocation of certain cases to preferred benches. The second is the process of preferential listing of certain cases, in breach of the current schedule, due to the powerful parties involved.
With regards to the first claim, on 12th January 2018, 4 sitting Supreme Court judges held an unprecedented press conference publicly questioning the then CJI regarding the administration of the Supreme Court. The judges alleged that the then Chief Justice, J. Dipak Misra, was resorting to selective allotment of certain cases to preferred benches. The major concern was that cases having large implications for the nation, such as the Aadhar judgement and the Sabrimala judgment, were being assigned to select benches without the involvement of the 4 senior judges in question and that this could jeopardize the Supreme Court and the Indian democracy. Considering the aforementioned framework for the allotment of cases, the only possible explanation for this selective allotment would be the CJI ordering the Supreme Court Registry to amend its existing allotment. This issue received national attention and was extensively covered by multiple media houses such as The Hindu, The Economic Times, Hindustan Times and India Today inter alia. Further analysis on this topic could be found in previous articles on this blog which have been linked here and here.
Preferential listing of cases
Unlike the selective allocation of cases, the responsibility for the alleged preferential listing of cases lies solely with Registry. As mentioned earlier, as per Order 3 Rule 7 of the 2013 Supreme Court Rules, the Registry is mandated to publish a ‘terminal list’ of all cases ready to be heard in that particular term and it is from this list that the schedule for each week is published. However, it has been contended that the Registry tends to favour certain high profile cases involving powerful people and expedites their date of hearing at the cost of other cases that are pending. In a recent interview, Retd. J. Deepak Gupta stated from his personal experience that cases involving ‘big money’ and ‘fancy law firms’ seemed to get priority in the listing. He further stated that such high-profile cases are listed exactly in four weeks whilst cases involving low profile parties were not listed for six months despite the court’s orders to list their cases in four weeks.
This disparity in the listing of certain cases was further exacerbated by the spread of COVID-19. In a circular released on 23rd March, the Supreme Court stated that in furtherance of steps to be taken to contain the spread of the virus, it shall function in a virtual capacity and shall only hear matters of extreme urgency. It further explained that the Presiding Judge shall decide if the matter in question is of extreme urgency and shall then enlist it in the cause-list to be maintained by the Registry and to be published on the Supreme Court’s website. It is this very duty of the Registry that is currently in question.
On the night of April 23rd, Arnab Goswami moved the Supreme Court demanding an urgent hearing to quash the multiple FIRs filed against him on various grounds, such as inciting communal hatred and making derogatory remarks against Sonia Gandhi. Remarkably, the SC Registry scrutinised the petition in a hurry and listed it for a 10:30 hearing before a 2-judge bench of the Court on the very next day to decide if it was a matter of extreme urgency. The alacrity with which the petition was heard at the cost of others has raised some valid questions regarding the Registry’s policy of preferential listing, especially in the midst of a pandemic.
In light of the Arnab petition, Advocate Reepak Kansal has filed a complaint with the Secretary-General of the Supreme Court alleging discrimination in the listing of cases and demanded corrective steps to be taken against the pick and choose policy of the Registry. He contended that the list of cases to be heard by the Supreme Court in the month of April did not cover the class of cases that Arnab’s fell under. He further argued that despite not being of the appropriate class, Arnab’s case was heard on the very next day whilst he had to wait 11 days for his matter to be heard. This showcases the preference given to high profile cases involving public figures at the cost of other cases. The secretary of the Supreme Court Bar Association claimed that there was no discrimination on part of the Registry and that as Arnab’s matter, unlike Advocate Reepak Kansal’s matter, was not related to COVID-19 and was heard by a different bench. However, already listed cases involving unlawful detention in Jammu and Kashmir and arbitrary charges under the Unlawful Activities (Prevention) Act which are not related to COVID-19 have still not been heard whereas Arnab’s petition was listed for hearing within hours. While the SC has subsequently stated that Arnab’s case was listed urgently as it pertained to liberty and freedom of media, the question arises as to why the aforementioned cases of similar importance have not been given the same treatment.
While the selective allocation of cases by the then CJI has come to the limelight and had culminated in an SC decision on the same, the preferential listing of cases by the Registry has not been adequately addressed so far with the aforementioned complaint being a welcome development in this regard. This cannot be the case as even the preferential listing to cater to the powerful is a deep-rooted problem and has serious implications upon the impartiality and the independence of the Apex Court. The discretion the Registry currently enjoys with respect to listing needs to be curtailed immediately. Though the ultimate need of the hour is a complete transition of the current listing system to an automated listing system, this would require a large overhaul of the administration which cannot be undertaken immediately. However, the quick fix to this problem could be a certain degree of oversight into the transparency and impartiality of the Registry by certain senior officials such as retired Supreme Court or High Court judges. The magnitude of this problem must not be underestimated. In conclusion, it is the author’s opinion that the moment the Judiciary falls prey to the politics of power and influence, it shall be the death of the very things the Court is meant to stand for – justice and independence.
Abhinand Lagisetti is a second year law student at the NALSAR University of Law, and is an editor and contributor to the Nyaya Blog.