The Supreme Court Registry has been established as a powerful body under the superintendence of the Chief Justice of India (CJI) which is responsible for receiving, processing and then categorising every case filed in the Supreme Court of India in the forty-seven subject categories provided for in Part 4 of the Supreme Court Rules (2013). It wasn’t a body under broad limelight till an unprecedented press conference by four judges of the Supreme Court of India (SC) on 12 January 2018 where it was alleged that the then CJI, Chief Justice Dipak Misra, was misusing his powers to allocate politically sensitive cases to a particular set of judges. What followed was a cascading series of crises, from the Chief Justice revising the Roster to exclude the four dissenting judges from Constitution benches and Public Interest Litigations, seemingly in an act of vengeance, followed by 71 Members of Parliament submitting a notice to the Vice President of India to impeach the Chief Justice. This notice was declined subsequently by the Vice President of India, permanently halting the impeachment process.
Even though the four dissenting judges were unable to reach the desired outcome of bringing forth accountability and transparency in the allocation on cases, a public dialogue on the abstruse and opaque process of creation of benches and allocation of cases had crossed its incipient stage. The SC ruled in Asok Pandey v. Supreme Court of India that “in the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative”, in effect reaffirming the discretion of the CJI in the allocation of cases as the “master of the roster”. This has been reaffirmed by the Court later. Following the decision, to some relief, the Court made available in the public domain the Roster which shall adjudicate over particular categories of disputes.
Procedure of Allocation of Cases
On the direction of the CJI, subject categories of cases are created. When cases are filed in the Court, the Registry processes them and notifies them to the selected bench. The Registry of the SC has been established as a body under the Supreme Court Rules and all appointments to the Registry are made by the Chief Justice of India under Article 146(1) of the Constitution. The appointments scheme, evidently, rests only with a single office. It is commonly accepted that procedural law must be drafted in a way to confine the range of actions available with future office-holders by using rigid and narrowly defined standards to minimize the scope of discretion available with that office-holder.
Such procedural law minimizes the scope of arbitrary power as all decisions are systematically governed by past codifications and there is minimal scope of ad-hoc decision making. This is largely absent from the relevant provision of the Constitution as the potential of the misuse of the Registry looms large, given its substantial powers over listing of cases. Under the scheme of things, it is entirely possible for the Registry to list a case immediately or to show reticence in listing a case under an oblique direction from the office of the Chief Justice of India. It has also been speculated that influential lawyers are able to jump the queue and get their cases listed fairly quickly. Whether this has actually occurred in the past and present has been the prime concern of many Public Interest Litigations, many of which have been dismissed by the Court after fining the petitioners, on the ground that they find the allegations of favouritism baseless.
These systemic issues became the subject of the letter written by the President of the Supreme Court Bar Association (SCBA), Dushyant Dave, to the Secretary General of the Supreme Court, who was left suspicious after the ‘extraordinary urgent listing’ of a special leave petition filed by Republic TV Chief, Arnab Goswami.
Why was the Letter Written?
Arnab Goswami, Chief of Republic TV, had been arrested and received judicial custody on November 4 concerning an abetment to suicide case initiated two years ago. It had been closed last year, however, a change in the Maharashtra government saw a reopening of the case. Goswami petitioned the Bombay High Court directly under Article 226 of the Constitution of India, requesting them to grant him bail. The Court quoted procedure and informed the petitioner that bail cannot be granted under an Article 226 petition. In what Justice AP Shah (Retd.) has referred to as “arguably the first time that an accused has moved both the lowest and highest courts together”, Goswami sought relief simultaneously from both a trial court and the SC. He notes that the entire process, from the Sessions Court at Alibaug, the Bombay High Court and the SC took only seven days, an extraordinary speed not accorded to many who wish to challenge their wrongful detention.
When the SC was petitioned, it took cognizance of the matter within a day and the case was listed before a bench of the Supreme Court. Despite the petition containing at least nine defects and being placed in the Defect List by the Registry, the case was listed in a single day. The Court granted him interim bail and pronounced a verdict on 27th November, claiming that “liberty is not a gift of the few” and that “common citizens without the means or resources to move the High Courts or the Supreme Court were languishing in jails as undertrials”. This has been viewed as a clarion call to High Courts to uphold personal liberty. It would be important to note here that 554 habeas corpus petitions are pending before the Jammu and Kashmir High Court, and only 29 of them have been decided following the application of the Public Safety Act in the Union Territory of Jammu and Kashmir after 5 August, 2019.
The disproportionate benevolence to one petitioner, while “thousands of citizens languish in jails due to non-listing of their matters” can be seen as the edifice of the letter written by Dave to the Secretary General of the Supreme Court.
What is the Letter About?
Dushyant Dave vehemently protests “selective listing” of matters by the Registry.
“This is a gross abuse of administrative power, whosoever has exercised it on the administrative side. It gives an impression that Clients represented by certain Lawyers are getting special treatment, which does not speak well if the great Institution, that the Supreme Court is,“
“Likes of Shri Goswami get special treatment while ordinary Indians are made to suffer, including Imprisonment, which are many times illegal and unauthorised.”
“The serious issue here is a selective listing of matters that the Registry under your leadership is indulging in for the last eight months during Covid pandemic. While thousands of Citizens remain in jails, languishing for long periods while their matters filed before the Hon’ble Supreme Court are not getting listed for weeks and months, it is, to say the least, deeply disturbing as to how and why every time Mr Goswami approaches the Supreme Court, his matter gets listed instantly.”
In addition, the has also alluded to influential lawyers who are receiving special treatment and their matters are being listed before the Court in rapid speed while other lawyers wait in a queue. This must be seen in the context of the abovementioned cases where the Court has dismissed all allegations of impropriety by the Registry.
He stated that such urgent listing of matters cannot take place without a direction from the CJI. In addition, he asked how some cases are being listed before others if the system is computerised and works without interference. He also demands the creation of a fool-proof system where all Advocates and citizens are accorded equal treatment and no case is listed arbitrarily before the Court. He advocates for due process to be followed in all matters of listing and condemns “selective listing” of a few cases.
He is able to capture in a very concise manner the grievances of a beleaguered detenu and their non-influential litigator, who suffer the ire of the system.
Foreign Jurisprudence over Allocation of Cases
Given the many possibilities of arbitrariness and misuse of the present system of Roster creation and case allocation, a comparative view of case allocation systems is necessitated. Here, we must recognize a fundamental difference in the appointment procedures of judges in India from the countries in comparison. India follows a Collegium System, evolved through a maze of Memorandums over the years. It lets the judiciary decide the judges, subject to an approval by the Executive.
Judges to the United States Supreme Court are appointed by the President and approved by the Senate. Most appointments depend on the party controlling the Presidency and the Senate. Judges are appointed for life and the liberal-conservative balance in the Court is highly consequential. Here, problems of case allocation do not arise as the Court hears en banc the miniscule number of cases the Court decides to accept. A more intuitive comparison, perhaps, shall be with the administration of State Supreme Courts of the US, where each state is designated to have at least one. In the US State of Oklahoma, for example, the Judicial Nominating Commission selects judges for gubernatorial appointments. Given the small size of the state with only nine districts, there are nine judges on the Court. All the nine judges are required to concur on case allocation criteria and the appointment of registration staff, creating greater space for a participatory process where dissenting judges are not jettisoned by their exclusion. A greater degree of transparency also exists because the judges are required to be elected by the Oklahoma electorate, a system structurally different from that of India. To ensure that there is an organized platform to address the grievances of judges, many states have created a Court of the Judiciary, which is responsible for hearing pleas for the removal and suspension of judges. In comparison, the judges’ impeachment process in India is highly dependent on the majority vested with the governing party, as a special majority is required in both Houses of Parliament to successfully impeach a judge, after receiving approval from the President of India and a motion by 50 members of the Rajya Sabha or 100 members of the Lok Sabha according to the Judges Enquiry Act (1968). No impeachment of a High Court or Supreme Court judge has been successful in India. Meanwhile, impeachment of judges to State Supreme Courts is a regular sight in the US. If the public is unhappy with the performance or conduct of a State Supreme Court judge, in Oklahoma for example, they can simply choose not to send them to the Court after their six-year term.
South Africa has been an important country from the perspective of comparative constitutionalism. There exists a separate Constitutional Court of South Africa to peruse over constitutional matters. It consists of eleven judges, eight of whom are required to hear any matter. The Chief Justice of South Africa, who is the head of the judiciary, plays no role in allocation of cases because eight judges are required to establish quorum and hear a matter. Interestingly, the absence of the Chief Justice does not impact the quorum. All proceedings are kept open to the general public and any individual is free to witness the proceedings inside the Court. In India, there complete opaqueness over the appointment process of judges. On the other hand, the Judicial Selection Committee in South Africa is mandated to make public all transcripts concerning the appointment of judges. The discourse in South Africa has reached a stage where scholars ask whether “this degree of transparency is a good idea (for a democracy) or not”, whereas many in the Indian legal field are busy sending contempt petitions to the Attorney General. In addition, the seating of judges is in a depression, a symbol of the power dynamics that the institution wishes to achieve. This serves as a “perpetual reminder that the role of judges is to serve the common man and not play God to them following any antiquated tradition clinging on to the vestiges of the theory of divine justice.”
Seeking Information from the Registry
After the Arnab Goswami petition was heard by the Court in lightning speed, many Right to Information (RTI) activists filed RTIswith the Supreme Court to enquire about the present backlog in the bail applications and the average waiting period between filing of the application and its listing before an appropriate bench. This could be helpful to get a confirmation of whether the present case was an anomaly or whether the uninfluential litigator also receives speedy justice. We have discussed an earlier PIL, where the Court fined the petitioner Rs. 100 and asked them not to demonize the Registry.
Presently, the RTI applications remain the primary way of obtaining information regarding the functioning of the Registry. The scope of the RTI has also been confined, at least with respect to High Courts, after the SC directions in Chief Information Commissioner v. High Court of Gujarat asking the applicant to state the reasons for obtaining information. Prior to this, it was widely recognized that a basic principle of the RTI Act (2005) is that no reasons are to be given by the applicant to obtain the relevant information.
Seeking information about the allocation of cases still remains an uphill struggle, but there is a lot we can incorporate from foreign jurisprudences surrounding the same issues.
A Counter-Letter and the Aftermath
In response to the letter by SCBA President Dushyant Dave, a letter was sent by Arnab Goswami’s wife, Samyabrata Ray Goswami to the Secretary General of the SC, alleging that the letter by Dave was a “malicious attempt to prejudice hearing” and that she was “horrified at the extent to which certain vested interests were at work”. It was claimed that this was “selective targeting” of Goswami and that the letter by Dave was contemptuous and interfered with the administration of justice. Her letter also gave examples of situations where the Court acted quickly to prevent injustice against Vinod Dua, a journalist, and Prashant Bhushan, a senior lawyer.
Both the letters allege that the other side is selective in terms of the grievances they wish to address. A failure to obtain nuanced views and the inability to engage with people on the opposite end of the ideological spectrum shall be the defining spirit of our generation. Strengthening of institutions and formulation of narrowly defined procedural law, accompanied with accountable systems of case allocation and a shift in our view of the justice dispensation process shall be fundamental to any transcendental shift of the process.
A pathological perspective into designing of procedural law is a necessity. Institutions must be so strong as to resist any temptations to bow down to overbearing pressures, especially in the times when a polarized society becomes the new normal. Anything else will be as infructuous and be rendered redundant when any challenging situation arises. The fundamental test of an institution’s resilience is only during the most arduous times.
The authors work at a Delhi based legal journal, The Woke Lawyer