Pakistan has abolished the contested practice of Master of the Roster. Should India follow suit?
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THROUGH a landmark verdict in October 2023, the Supreme Court of Pakistan has abolished the controversial practice of Master of the Roster.
Reading the majority verdict (10:5), the Chief Justice of Pakistan (CJP) Qazi Faez Isa dismissed petitions challenging the Supreme Court (Practice and Procedure) Act, 2023.
The Act requires the constitution of a panel of the Chief Justice of Pakistan and the next two senior-most judges of the court to decide on the formation of constitutional Benches as well as matters to be taken up suo motu. This essentially takes away the Chief Justice's absolute monopoly over the Supreme Court's roster.
“The tenure of the former Chief Justice of Pakistan, Umar Ata Bandial, sparked controversy over the political influence on the functioning of the judiciary amid political turmoil after the ouster of Imran Khan as Prime Minister.
The tenure of the former Chief Justice of Pakistan, Umar Ata Bandial, sparked substantial controversy over the political influence on the functioning of the judiciary amid political turmoil after the ouster of Imran Khan as prime minister.
Bandial's 19-month tenure, which concluded in September last year, was marked by a series of controversies over the allocation of politically sensitive cases to particular judges, allegations of Bandial being partisan towards Imran Khan, visible divisions among judges, Pakistan's National Assembly passing a resolution rejecting judicial interference in legislative matters, and the Pakistan government demanding Bandial's resignation.
It was to check Bandial's that the Pakistan Parliament passed the Supreme Court (Practice and Procedure) Act in April. However, before the Act was formally notified, a Bench led by Bandial stayed its implementation, noting that it was "beyond the legislative competence of the Parliament".
These developments have an interesting parallel in India. Here too, the Chief Justice exercises the power of Master of the Roster in judicial administration.
Two primary observations can be deduced from the history of the Indian judiciary vis-à-vis national governance: first, although not envisaged by the framers, historically the judiciary has been frequently caught in political battles.
Second, the office of the Chief Justice of India as Master of Roster wields a significant amount of power and consequence of this power was most visibly evident during the Emergency.
Constitutionally, the Chief Justice of India is primus inter paras, i.e., he is considered to be the first among equals. Yet, the office of the Chief Justice of India enjoys vast administrative powers that are not constitutionally mandated but are conventionally established.
This convention has been formalised and upheld by the Supreme Court through various judgments.
The role of Master of Roster has kicked up quite some controversy in India in the last couple of years, both in the legal community and public debate alike. The controversy was first sparked in the public domain when on a Friday morning on January 12, 2018, the four senior-most judges of the Supreme Court of India addressed a press conference expressing concerns over the "survival of democracy" in India and the then Chief Justice of India Deepak Mishra's exercise of the power of Master of the Roster.
“Constitutionally, the Chief Justice of India is primus inter paras, i.e., he is considered to be the first among equals.
In their address, the judges stated that "there have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by the Chief Justice selectively to Benches" to influence judicial outcomes.
A few months later, two petitions expressed concern over the absence of institutional constraints in the exercise of the power of Master of Roster.
The first petitioner sought to establish a set of procedures to constitute three- or five-judge Benches which are essentially Constitution Benches. In the second petition, senior advocate and former Union law minister Shanti Bhushan sought to transfer the power of Master of the Roster to the Supreme Court Collegium rather than concentrating it in the Chief Justice alone. Dismissing both petitions, the court reiterated the absolute power of the Chief Justice over the roster.
The problem became even more pressing in April 2019, when former Chief Justice of India Ranjan Gogoi headed a Bench to hear his own case, where allegations of sexual harassment were levelled against him by a former Supreme Court employee.
This raised a storm of public opinion as Justice Gogoi's actions essentially violated the principle of nemo judex in causa sua which translates to 'no one should be a judge in his own case'.
Note that Justice Gogoi was among the senior-most judges who had made allegations against former CJI Justice Mishra for misusing the power of Master of the Roster.
Another such instance occurred in 2022, when, on a Saturday, a division Bench of the Supreme Court of India suspended the Bombay High Court's Order acquitting former Delhi University professor G.N. Saibaba, who had been arrested under the Unlawful Activities (Prevention) Act, 1967 for having alleged links with Maoist.
In addition to the substance of the matter, the manner in which the matter was heard was found to be deeply troubling. Note that before the matter went to a special division Bench, the request to list the matter by the Solicitor General of India was sent to a Bench comprising the senior-most judge Justice D.Y. Chandrachud (in the absence of the Chief Justice U.U. Lalit).
Two outcomes of this instance are pertinent. First, a special Bench was called to challenge an acquittal Order on a holiday, which subsequently dealt with the matter without going into its substance.
Second, a special Bench was called, after the Bench comprising of the senior-most sitting judge denied listing the matter on a Saturday, with due consideration of the substance of the high court's acquittal order.
The Supreme Court's registry, which handles case listing under the purview of the office of the Chief Justice, accepted the application of the State to list the matter on a Saturday.
Thus, there have been multiple occasions where the Chief Justice's power of Master of the Roster has been exploited.
The events of the last few years not only underscore the problem of political influence over the position of Master of the Roster, but also raise concerns about accountability and transparency within the institution of the judiciary.
“This raised a storm of public opinion as Justice Gogoi's actions essentially violated the principle of nemo judex in causa sua.
A recent instance at the Supreme Court further made the issue of transparency urgent.
In December last year, a contempt petition filed against the Union government was not listed in the Supreme Court on the given date, despite specific direction by a Bench consisting of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhuila.
When senior advocate Prashant Bhushan, representing one of the petitioners in the case, invited the Bench's attention to this unusual practice, Justice Kaul clarified that he had nothing to do with the deletion and it is best to "leave somethings unsaid".
Responding to the matter, senior advocate Dushyant Dave, in an open letter to the CJI, raised questions about the handling of the court's registry, the registry's pick-and-choose approach in assigning cases, and why critical matters are re-assigned at the discretion of the registry without offering any explanation whatsoever.
The entire episode brought the concerns of discretionary practices associated with the Role of the Master Roster back to the table and drew more suspicious gazes to the administrative powers of the Chief Justice.
Why was the issue of judicial appointment, which has been a matter of critical importance for judicial independence, deleted from the cause list without sufficient reasoning? Has the Union government been given preferential treatment? If indeed that is the case, what implication this might have for judicial independence vis-à-vis the office of the CJI?
At the same time, the unaccountable exercise of Master of the Roster power has led to many instances where citizens are denied their basic constitutional rights, simply because they are 'political prisoners'.
A glaring example of this is the activist Umar Khalid, whose bail plea has been postponed over 13 times since he was arrested for his alleged involvement in Delhi communal violence in 2020. Notably, since April 2023, eight different judges have been assigned to hear his bail plea in division Benches.
Three takeaways from the Pakistan Supreme Court's verdict on Master of the Roster are relevant to India.
First, while delving into the architecture of the judiciary, the court emphasised the responsibility of the judiciary to decide the case in accordance with the Constitution and fair trial.
Second, in a plain reading of the Constitution, the court rejected the presence of the phrase 'Master of the Roster'. It also criticised the word 'Master', deeming it offensive in a constitutional democracy.
“Thus, there have been multiple occasions where the Chief Justice's power of Master of the Roster has been exploited.
Third, the court rejected the concept of the Chief Justice having arbitrary power to allocate and decide cases and called it an antithesis to a democratic institution.
The reforms introduced by Pakistan's legislature and later upheld by the Supreme Court provide a way forward towards making the office of the Chief Justice more accountable and transparent.
Speaking at a recent event, the incumbent Chief Justice of India D.Y. Chandrachud expressed the need for the judiciary to "begin difficult conversations". Although he spoke extensively about the problem of representation of marginalised sections, the adjournment culture and the tradition of long vacations vis-à-vis reforms in the judiciary, the problems of accountability faced by the office of the Chief Justice of India were not touched upon.
“In a plain reading of the Constitution, the court rejected the presence of the phrase 'Master of the Roster'. It also criticised the word 'Master', deeming it offensive in a constitutional democracy.
Perhaps a little more introspection might reveal that the time is right for the Indian judiciary to introduce a transparent system that contains necessary checks and balances while assigning cases in the Supreme Court.
There is always a possibility of the new system having its own set of drawbacks. However, in a democratic system, an incremental way forward might yield positive results.