A recurring criticism of the judiciary suggests that its apathy to act promptly in the face of challenges has exacerbated the negative impacts of the pandemic, and failed to timely resolve numerous socio-political issues. At the heart of this concern is the contentious process of how cases are allocated to various benches in the Supreme Court and the High Courts. The Chief Justice of India’s (CJI) role as the ‘Master of the Roster’ raises questions over judicial transparency and accountability. It also highlights deeper faultiness within the judiciary and the urgency with which they ought to be resolved. Recently, the Supreme Court announced a new roster for allocating cases this year, identical to the previous one. According to the new roster, the CJI is involved in Public Interest Litigations, letters petitions, Election matters, social justice matters and habeas corpus petitions as well. CJI has an extensive list of the subject matter under his control, thereby making the process extremely individualistic which in itself demands attention.
The Roster System
In 2018, after the unprecedented press conference by four senior-most judges of the Supreme Court, the then Chief Justice of India, Dipak Misra, established a system of subject-wise allocation of cases. This structure gained legitimacy from two Supreme Court judgements which reaffirmed the powers of the CJI as the ‘Master of the Roster’. Firstly, in Ashok Pande v. Supreme Court of India, the Court rejected a plea for the evolution of a “set procedure” for the constitution benches and reaffirmed the principle that allocating cases to a bench is the sole prerogative of the CJI. Thereafter, Shanti Bhushan case rejected the argument that for all administrative purposes, the expression ‘Chief Justice’ ought to mean the ‘Collegium’.
It is undisputed that the CJI’s administrative powers are plenary and s/he, as Master of Roster, has the discretion to allocate cases to preferred benches, this system is against the spirit of non-arbitrariness tying our Constitution together (Govt. of NCT of Delhi v. Union of India). Placing sweeping powers in the hands of the CJI will inevitably compromise the process of justice dispensation from the highest court of the land. In practice, the system has led to a catena of issues- polyvocal court, doctrinal inconsistency, the same judge presiding over majority of constitutional benches, unjust gender representation, declining dissenting judgments among others.
Hence, while the power of allocating cases largely appears to be an administrative exercise, its repercussions are far-ranging and directly affect the verdict of a case. Therefore, vesting this power solely in the hands of one constitutional functionary, that is, the CJI, does not inspire confidence.
A Comparative Survey
As argued by Theodore W. Ruger, the suspicion regarding CJI’s unbridled power arises due to the absence of a reason-giving obligation and unilateral decision making as opposed to a collective structure. Although the power is exercised by the CJI, it is constitutionally vested in the Supreme Court. One step towards structural reforms was undertaken by the SC in 2019 when it introduced the idea of having a Permanent Constitution Bench (PCB). Although largely the power to constitute a PCB remained with the CJI, having a PCB would have substantially affected the influence of CJI on a case to case basis. There were potential benefits of the system, however, it was also asserted that it would negatively impact the pendency of cases. We believe this was the first step in the right direction.
The United States
The American Constitution confers no special powers to the Chief Justice of the Supreme Court of the United States (SCOTUS). While the Chief is required to function as the ‘first among equals’, her independent discretion in administrative matters has undergone a substantial change. This is visible in the Chief presiding over key Judicial Conferences to frame norms, the appointment of personnel to federal courts and the selection of judges who sit on specialised federal courts. The Chief has also been accorded the power of handpicking judges to preside over the Foreign Surveillance Intelligence Surveillance Act Courts. Similar to India, the SCOTUS’ Chief enjoys vast discretionary power.
Contrarily, the system of panel formation in Federal Courts of Appeal — courts which hear appeals against district court verdicts in its circuit — present an interesting perspective. Federal Courts of Appeal typically hear a matter in panels of three judges. Therefore, circuit courts require a system of allocating cases to various panels. Contrary to popular belief, recent scholarship has revealed that the formation of these panels is not random and rather hinges on the availability of judges. However, the absence of randomness does not imply ideological manoeuvring. Empirical research shows that cases are allocated to various panels to enhance efficiency or on logistical factors like the preferred calendar of a judge. Interestingly, the answer to how courts form panels is not found in statute books or even the Federal Courts Rules of Procedure. It is only stated that the panels must sit in benches of three and as “the court directs”. Thus, it has fallen on the Federal Courts of Appeal to determine how to assign judges to various panels.
No common rules are followed in all jurisdictions, in some circuits, this task falls upon the Chief, while in others, it is done through consultations between the court’s clerk and members of the circuit’s executive staff. While there is no uniformity in matters of panel formation, several areas like efficiency, collegiality, logistics, maximising judicial resources, and training of new judges, etc., are the deciding factors. However, this system is capable of providing fruitful results only if the panel formation does not raise concerns of biased judicial reasoning and verdicts. The Chief’s power to allocate cases to various panels in some circuits allows space for arbitrariness to creep in. Whereas, the allocation, if done by a circuit court’s separate administrative staff could yield transparent and unbiased results provided such a body is not directly arbitrarily appointed by the executive.
The Federal Court of Australia has adopted the National Court Framework to reform the judicial system. The reforms are extended to the allocation of work by the registrar of the courts as well. The Allocation Principles assign cases based on individual docket system and workload among other parameters. Furthermore, the Australian courts tend to conceive judges as generalists with a capacity to hear different types of cases that come before them. This system highlights the principle of judicial impartiality and neutrality in the process of case allocation. It inspires confidence in the fact that the choice of a judge will not ultimately alter the court’s decision. Therefore, a joint understanding of the system of case allocation in the US Federal Courts of Appeal and Australian courts suggests that a transparent method of case allocation aimed towards enhancing the court’s efficiency could yield fairer and more positive outcomes. A body for allocation of cases, Presidium (discussed below), can be opted for.
The United Kingdom and CJEU
Certain reformative measures are sought from the United Kingdom Supreme Court, where the power to allocate cases lies with the President and Deputy President and for benches consisting of more than five judges, the Panel Number Criteria is followed. However, we disagree with the adoption of such a system. Mere division of power among two individuals in an institution of 34 judges would not curb the potential of misuse of the discretionary power to allocate cases.
Another reform, as suggested by Justice AP Shah, is of either a random allocation of cases or to follow the rules of the European Court of Human Rights. Arguments have been made against random allocation of cases on grounds of efficacy. It is argued that random allocation of cases would not take into account the domain expertise of the judge. In the ECHR, the composition of chambers and grand chambers is predefined in an extensive set of rules which minimizes the personal biases to influence the allocation of cases. However, having pre-defined norms does not solve the problem in all cases. For instance, scholars have analysed data to argue for selective (or strategic) assignment of cases in CJEU which also works on pre-defined norms.
The four judicial systems surveyed above have drawbacks according to studies. Even the most optimal one, CJEU has certain drawbacks according to studies. Based on a similar concept but with substantial safeguards is the German system. Article 101 of the German Constitution, Basic Law for the Federal Republic of Germany, provides for the principle of “lawful judge”. It reads as – “No one may be removed from the jurisdiction of his lawful judge”. This requires that an objective mechanism be used to determine which judge is competent to hear the case. This principle has evolved to restrain any kind of undue influence, irrespective of the source. If this right is infringed, redressal can be sought through constitutional complaint (Article 93). This principle requires that for every case, the competent judge or chamber shall be fixed beforehand following the established rules to avoid any manipulation.
This is further strengthened by statutory limitation in Courts Constitution Acts (Gerichtsverfassungsgesetz, GVG). These court rules are abstract and formal in nature, called Geschdftsverteilungsplan or ‘table of duties’ (Section 21e). The “Presidium”, responsible for allocation of work, consist of the President of the court and other elected members (Section 21a). An important provision is that members who are not a part of the Presidium are given an opportunity to comment. The reason for favouring the German system over CJEU lies in Section 21a of GVG, which provides for a Presidium of elected members and allows other members—who are not a part of the Presidium—to comment.
Reforming the Roster:
We propose a two-pronged reform in the allocation of cases viz, firstly, the principles or rules for allocation of cases must be objective and established in advance i.e. the flexibility and discretion vested in the CJI must end. As long as flexibility remains, the fear of an arbitrary exercise of power along ideological lines looms large, which might lead to chaos. Secondly, the method, rules, or principles used for periodic selection of the roster must be public to make the process transparent. Combined, these steps will prevent even the slightest possibility of unwarranted influences.
Lastly, a compulsory obligation to provide reasons for the creation of new rosters is warranted. This shall further judicial accountability and transparency by ensuring that the process of allocating cases is available for the public to scrutinise and judge.
Due to its effectiveness in curbing manipulation, scholars have argued importing the GVG and the principle of “lawful judge” in some countries, by way of statutory law or even amendment to the Constitution. We believe, this can be imported to India under Article 145(1) of the Constitution, which authorizes the Supreme Court to make rules. A similar set of rules for allocation of cases, as under Section 21a-21j may be adopted.
After a survey of five major judicial systems in the world, we favour the adoption of a system similar to Germany with- a) GVG like pre-defined norms; b) publication and transparency; c) an elected Presidium. At the same time, we concede that no system is bound to be perfect, however in our study we have found the system to highly effective.
The potential of misuse is enough to enact safeguard against it. If the SC resists such reforms, it is resisting transparency in its functioning. By doing so, it is evading its accountability to the people of India. This becomes crucial as the government is involved in 45-70% of the cases. We have crossed the stage where this change is desirable, it is a necessity. The judiciary must counter authoritarian tendencies rather than siding with them. Every potential manipulation in the administration of justice must be defied by a legal system to regain acceptance and public trust.
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