SHANTI BHUSHAN v. SUPREME COURT OF INDIA THROUGH ITS REGISTRAR AND ANOTHER

A (5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case. (6) That the puisne Judges cannot “pick and choose” any B case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. C Xxxxxxxxxxxx”

17. There are series of judgments reiterating the same view as expressed by this Court in State of Rajasthan (supra). In an earlier judgment, Union of India and Another Vs. Raghubir Singh (Dead) By LRs. Etc., (1989) 2 SCC 754¸ a Constitution Bench of this Court D noticed that as a general rule of practice and convenience, the Court should sit in Divisions and each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such E authority devolves by convention. In Paragraph 27, following has been observed:- “…………………………..It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire F Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of G Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most H appropriate……………………………”

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18. In D.C. Saxena Vs. Hon’ble The Chief Justice of India, A (1996) 5 SCC 216, this Court held that it is the Chief Justice’s prerogative to constitute benches and assign the judicial work and the judicial business would not hinge on the whim of a litigant. In Paragraph 26, following has been laid down:- “26. ………………………….The Chief Justice’s prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant.”

19. This Court further in State of Uttar Pradesh and Others Vs. Neeraj Chaubey and Others, (2010) 10 SCC 320 held that power of Chief Justice of allocation of business of the High Court flows not only from the provisions contained in sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. Following was observed in Para 9 :- “9. ………………If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case………………………” E

20. It was further cautioned in the above case that in event the distribution is not done by the Chief Justice of India, it may generate internal strife on account of hankering for a particular jurisdiction or a particular case. The law laid down by this Court as is clear from precedents noted above, is that allocation of business of Court by the Chief Justice not only flows from the Constitutional provisions but is F held to be prerogative of the Chief Justice and which is a convention followed from the very beginning. Apart from above, as noted above, the power of the Chief Justice to allocate cases flows from rules framed under Article 145 of the Constitution of India.

21. Now, we come to the submission which has been put forth by G Shri Dushyant Dave forcefully that Chief Justice of India while allocating cases and forming benches for disposal of business of the Court should be read as collegium. Shri Dave in support of his above argument takes sustenance from the Constitution Bench judgment of this Court. In Judges case i.e. S.P. Gupta Vs. Union of India, (1981) Supp. SC 87, which H

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22. Justice Bhagwati, speaking for majority in S.P. Gupta’s case (supra) while interpreting Article 124(2) laid down following in Paragraph 31:- “31. ……………The petitioners contended that the Central Government may, if it thinks fit, consult one or more of the G Judges of the Supreme Court and of the High Courts or it may not consult any and where it does not, the Chief Justice of India will be the only constitutional functionary required to be consulted and in such a case the Central Government must accept the opinion of the Chief Justice of India as binding H

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upon it. We do not think this argument is well founded. In the first place it is not justified by the plain language of clause (2) of Article 124. This clause clearly provides for consultation as a mandatory exercise and the only matter which is left to the discretion of the Central Government is the choice of the Judge of the Supreme Court and the High Courts who may be consulted. The words “as the President may deem necessary” qualify only the preceding words “such of the Judges of the Supreme Court and of the High Courts in the States.” Which of the Judges of the Supreme Court and of the High Courts should be consulted is left to the discretion of the Central Government but consultation there must be with one or more of the Judges of the Supreme Court and of the High Courts. The Central Government must consult at least one Judge out of the Judges of the Supreme Court and of the High Courts before exercising the power of appointment conferred by clause (2) of Article 124. This requirement is prescribed obviously because the Constitution-makers did not think it desirable that one person alone, howsoever high and eminent he may be, should have a predominant voice in the appointment of a Judge of the Supreme Court. But it seems that this requirement is not complied with in making appointments on the Supreme Court Bench presumably under E a misconception that it is not a mandatory but only an optional provision. The result is that the Chief Justice of India alone is consulted in the matter of appointment of a Supreme Court Judge and largely as a result of a healthy practice followed through the years, the recommendation of the Chief Justice F of India is ordinarily accepted by the Central Government, the consequence being that in a highly important matter like the appointment of a Supreme Court Judge, it is the decision of the Chief Justice of India which is ordinarily, for all practical purposes final. But, as it happens, there are no criteria laid down or evolved to guide the Chief Justice in G this respect nor is there any consultation with wider interests. This is, to our mind, not a very satisfactory mode of appointment, because wisdom and experience demand that no power should be vested in a single individual howsoever high and great he may be and howsoever honest and well H

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A meaning. We are all human beings with our own likes and dislikes, our own predelictions and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations. It may also be noticed that it is not difficult to find reasons to justify what our bias or predeliction or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. That is perhaps the reason why the Constitution-makers introduced the requirement in clause (2) of Article 124 that one or more Judges out of the Judges of the Supreme Court and of the High Courts should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to the Central Government to select any one or more of the Judges of the Supreme Court and of the High Courts for the purpose of consultation. We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential — it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited sections of humanity…………………………” H

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23. In Second Judges case, i.e. Advocates on Record Association A case (supra), Justice J.S. Verma, speaking for majority laid down following in Paragraph 427 and 478:- “427. …………………………….A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between themselves, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provisions were enacted.

478. This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two seniormost Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior- most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High F Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which G requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. H xxxxxxxxxxxxxxxxxxxxx”

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A 24. In Third Judges case, Special Reference No. 1 of 1998, (1998) 7 SCC 739, approving the construction as was put by this Court in Second Judges case, Justice S.P. Bharucha, as he then was, in Para 160 held that collegium should consist of the Chief Justice of India and four 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 in conjunction with the body of this opinion:

1. The expression “consultation with the Chief Justice of C India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles. D xxxxxxxxxxxxxxx

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the 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 the two seniormost puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.”

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

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26. The proviso contains specific requirement of consultation with the Chief Justice of India in case of appointment of judges other than the Chief Justice. Article 124 reveals thus two necessary ingredients regarding consultation, i.e. (i) Chief Justice of India shall always be consulted in case of appointment of judges other than the Chief Justice; (ii) the President shall make appointment after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. In addition to consultation with the Chief Justice of India, consultation with other judges was specifically made part of the Constitutional scheme. This Court in Second Judges case and Third Judges Case taking note of the above constitutional scheme has read the word “Chief Justice” as collegium. Thus, the reason for reading the word “Chief Justice” as collegium in Article 124 has constitutional basis as elaborated in Second Judges case and Third Judges Case.

27. With regard to procedure and practice of Supreme Court, Article 145 empowers the Supreme Court to frame rules with the approval of the President. The word practice and procedure of the Court are wide enough to include practice and procedure relating to preparation of roster and allocation of cases. The Rules framed by Supreme Court under Article 145 specifically refers the Chief Justice in Chapter VI as noted above, the Chief Justice, who is to nominate the bench for hearing every case, appeal or matter. There is no indication in any of the constitutional provisions or rules framed thereunder that for allocation of cases and formation of benches, Chief Justice should be read as collegium. For reading Chief Justice as collegium, under Article 124, there was a constitutional basis as observed above. This Court had also on several occasions, noticed and expressed reasons for holding that it is the only prerogative of the Chief Justice to allocate cases and nominate the bench. This Court in State of Uttar Pradesh and others Vs. Neeraj Chaubey and Others (supra) has made following weighty observations:- “9. ………………If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case………………………” H

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A 28. The submission of learned Attorney General is that allocation of 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 counsel for the petitioner that in allocating cases and formulating benches of the B Supreme 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 whereas Chief Justice was to exercise any power individually, said provisions have been specifically included. He has referred to Article 130 of the C Constitution which provides: “130. Seat of Supreme Court.- The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” D He has further referred to Article 146 which provides that the appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct. He has referred to sub-clause (2) of Article 146, which empowered the Chief Justice of India or some other Judge E or officer of the Court authorised by the Chief Justice of India to make rules regarding conditions of service of officers and servants of the Supreme Court subject to provision of any law made by the President. There is no doubt that above provision of the Constitution provides for the Chief Justice to exercise particular powers.

F 30. The submission that Constitution does not specifically mention Chief Justice to exercise power of allocation of cases and constitution of Benches, hence, Chief Justice is not empowered to do the same, is not a valid submission. Under the constitutional scheme itself as contained in Article 145, the practice and procedure of the Supreme G Court is to be regulated by the rules made by the Supreme Court with approval of the President.

31Copy pinpoint31. As noted above, rules framed under Article 145 specifically empower the Chief Justice to nominate Benches for hearing cases or appeal. Non-containing of any specific provision in the Constitution empowering the Chief Justice to frame the roster to allocate the cases is H

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inconsequential since the entire subject was to be covered by rules made A under Article 145.

32Copy pinpoint32. In considering the submissions raised in this case, we are reminded of prophetic words of Mr. Justice Holmes in Northern Securities Co. v. United States, 48 LAWYERS’ EDITION U.S. 196 (1903). Holmes, J. said: B “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests C exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”

33Copy pinpoint33. Our views as expressed above are fortified by a recent Constitution Bench judgment of this Court in Campaign for Judicial D Accountability and Reforms v. Union of India & Anr., (2018) 1 SCC 196 and three Judge Bench judgment of this Court dated 11.⁴.2018 in Writ Petition (C) No.147 of 2018, Asok Pv. ande Supreme Court India through its Registrar and Ors., (2018) 5 SCC Scale 481.

34Copy pinpoint34. Shri Dave also raised an alternate submission; that allocation of cases and constitution of benches should be undertaken by the entire Court. He submitted that all the Judges can sit together and formulate the procedure for constitution of Benches. The rules framed by the Supreme Court under Article 145 are the rules made by the Court and when the rules made by the Court specifically empowers the Chief Justice to nominate Benches for hearing a cause or appeal or matter, which has been conventionally the prerogative of the Chief Justice. The submission, that full Court should allocate cases and constitute the Benches, run counter to the constitutional scheme read with rules framed under Article

145. We, thus, are not impressed by the submission of Shri Dave that the roster should be prepared by the entire Court. G

35Copy pinpoint35. In so far as submission made by Shri Dave that in allocation and listing of cases the Supreme Court Rules, 2013 have to be followed, no exception can be taken to the above submission. When the statutory rules are framed the entire business of the Court which is covered by the Rules has to be dealt accordingly. H

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36Copy pinpoint36. Law settled by this Court in large number of cases as noticed above as well as judgments of three-Judge Bench and Constitution Benches noted above are binding on us and settled law cannot be unsettled on the premise on which the entire writ petition is founded.

37Copy pinpoint37. Shri Dave during his submission has also referred to the handbook on “practice and procedure and office procedure (2017)”. The handbook is a compilation of practice and procedure and office procedure 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 a written guide for smooth transaction of the business of the Court. Various instructions enumerated in different Chapters provide for the conduct and business of the Court in orderly manner with certainty, there cannot be any dispute that when a procedure is laid down to be followed by officials of the Supreme Court, all business is to be transacted in the said manner. As noted above, for the purposes of this case, we need not dwell into listing of some cases as enumerated in the writ petition. Learned counsel for the petitioner candidly submitted that petitioner is not questioning any order or judgment referred to in the writ petition. The endeavour of the writ petitioner is to find out an appropriate procedure for proper and fair distribution of cases and constitution of Benches.

38Copy pinpoint38. Learned counsel for the petitioner has also referred to and relied on various international practices. During the submission he has referred to practices pertaining to case assignment in United Kingdom Supreme Court, High Court of Australia, Supreme Court of Canada and the practice in United States Supreme Court. The practices and function of each Court are different which has been evolved by time looking to particular background and set of facts. The practice of a Court ripens into a convention by passage of time and rich heritage of conventions are time tested which is followed by different Courts. The conventions and practice of the Supreme Court are time tested which practice and conventions of this Court have ripened with time which need not to be tinkered with or imitated from different international practices of different Courts. As noted above, the law laid down by this Court is that; the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice. We, thus, cannot import the international practices in the constitutional and statutory scheme of this Court. H

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39Copy pinpoint39. Much emphasis is laid down by the learned counsel for the petitioner that the procedure and manner of allocation of cases and formulation of Benches should be one which is accessible to public and there should be objective criteria of exercise of the power by the Chief Justice. Manner and procedure for exercising the power should be put in public domain to allay any kind of misapprehension and to instill confidence in public in general. We have already noticed above that the manner and procedure for transaction of Court work is elaborately dealt with Supreme Court Rules, 2013.

40Copy pinpoint40. Further, handbook on practice and procedure and office procedure also laid down sufficient guidelines and elaboration of the procedure which is to be followed in this Court. Thus, for transaction of business of the Court, there are elaborate rules and procedure and it cannot be said that procedure and practice of the Court is unguided and without any criteria.

41Copy pinpoint41. We are, however, not unconscious of the fact that working of any system is a continuous process and each and every organisation endeavours to improve the working of its system suitable to circumstances and the need. Improvement of functioning is always a goal of every system and all organisations endeavour to improve the system, which is always a welcome steps. The Supreme Court cannot be an exception to above objective and goal. E

42Copy pinpoint42. Before we close, we remind ourselves of following weighty words of Venkataramiah, J. in Judges’ case: “1268. ........We are made to realise that we are all mortals with all the human frailties and that only a few know in this world the truth behind the following statement of Michel De F Montaigne: “Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track”. .............................But if the judiciary should be really independent something more is necessary and that we have G to seek in the Judge himself and not outside. A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill will, hatred and contempt and fear and recklessness. In order to be a successful Judge these elements H

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A should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty. These curbs can neither be bought in the market nor injected into human system by the written or unwritten laws. If these things are there even if any of the protective measures provided by the B Constitution and the laws go the independence of the judiciary will not suffer. But with all these measures being there still a Judge may not be independent. It is the inner strength of Judges alone that can save the judiciary. The life of a Judge does not really call for great acts of self-sacrifice; but it does C insist upon small acts of self-denial almost every day. The following sloka explains the true traits of men with discretion which all Judges should possess:

E [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 a yuga (millennium), men with discretion will not deflect from the path of rectitude.)” F

43Copy pinpoint43. The writ petition is disposed of with the observations as made above.

Ankit Gyan Writ Petition disposed of. G