The Standards Of Basic Structure: Questioning The Master Of The Roster

The Master of the Roster system has been followed as an administrative convention in the Supreme Court of India from time immemorial. It was regarded as an efficient tool of administration and allocation of cases to benches in the Supreme Court. Is it all this and more or less benign? ASHIT KUMAR SRIVASTAVA AND SHAILESHWAR YADAV test the practice against the constitutional norms. 

——–

The memory of four senior judges holding a press conference against erstwhile Chief Justice of India Dipak Misra is still fresh in the minds of the legal community. It cannot be denied that scholars at the bar and in academia have expressed distaste for the prerogative of the Master of the Roster or MoR mechanism. The primary disagreement is based on the argument that it excessively empowers the individual who happens to be the CJI at any point to constitute benches and allocate cases.

Yet, the Supreme Court has time and again expressed faith in this prerogative of the CJI, arguing that the MoR system is necessary for judicial discipline. In Shanti Bhushan v. Union of India, the senior counsel asked the bench why the MoR system should not be replaced with a judicial collegium that allocates judges to benches and matters. The Supreme Court emphatically held that a collegium cannot be read into Article 145(2) of the Constitution.

However, in the absence of judicial checks, the MoR system remains pretty much unaccountable to any authority. This may create a breeding ground for arbitrariness. Time and again, legal scholars, including senior judges, have protested this prerogative of the CJI through the MoR. A repetition of benches and lowering of the frequency of dissenting opinions is one prime reason why academicians have questioned this prerogative.

Justice KS Hedge emphasised in an interview with George Gadbois Jr. on a permanent Constitution Bench. Further, he and Justice Tulzapurkar concurred during this interview that the MoR minimised dissent. Justice Tulzapukar said arrangements were made by the CJI to minimise confrontations. Indeed there were only a few significant dissenting views expressed in rulings during the tenure of Justice Misra. The dissenting opinion of Justice Chandrachud in the Aadhaar judgment and Justice Indu Malhotra's dissent in the Sabrimala judgment were among these, exceptions of a sort.

Additionally, during the tenure of Justice Misra, Justice Chelameswar, who was the second-senior judge, never got a chance to sit on the Constitution Bench. Instead, the prominent Constitution-bench cases were heard most often by Justice Chandrachud (seven times) and Justice Khanwilkar (also seven times) although they were 18th and 17th on the seniority list.

George Gadbois Jr. has documented this series of events in interviews with judges from the 1950s to 1980s. For example, Justice K Subba Rao, who was known as a great dissenter in his tenure as Supreme Court judge for delivering 48 dissenting opinions, never gave a dissenting opinion once he became CJI.

This is bound to raise questions on the efficacy of this prerogative, yet the Supreme Court has disagreed with the criticism. The court has always believed that the MoR system is more efficient and disciplines judges of the court. As the CJI is the seniormost judge, it is appropriate that the power of the roster lies with him and not left to puisne judges which might lead to tussles over cases among judges, is the argument.

We can examine the MoR against the standard of the Basic Structure of the Constitution, yet we first need to establish that the administrative prerogative of MoR is an indispensable feature of the Constitution. There are two primary ways to apply this test. One is the "no other alternative" test and the other is the "efficiency" test. The first test looks into whether a particular feature is so essential to the working of the Constitution that there cannot be an alternative to it. The notion of essentiality elevates a "feature" into a "structure", but not all questions of "structure" are based on essentiality. Some are based on deeper entrenchment in society, such as secularism, democracy, and universal adult franchise.

On the question of essentiality, the Supreme Court has taken an unequivocal stand that the MoR is an accepted convention, which was turned into a legislative provision by the Supreme Court Rules, 2013, (Order VI). The history of the MoR starts from the Indian High Courts Act, 1861, when the three high courts were established in Calcutta, Bombay, and Madras [now Kolkata, Mumbai, and Chennai]. Through Letter Patents, Chief Justices (who mostly were British) of the High Courts of Calcutta, Bombay, and Madras were given powers to administer the court in their respective jurisdictions.

Therefore, there surely is a colonial hue to the MoR. Besides, alternatives to it might bring more accountability. As Shanti Bhushan had suggested, one model is the collegium system. However, that idea was rejected.

The other test is of "efficiency". The question is, does the current MoR bring more efficiency to the working of the Supreme Court. Seeing the 12 January press conference incident it is hard to arrive at that conclusion. Other senior judges were not satisfied with the MoR system either. (Justice Hidyatullah, for instance, had expressed concern that Justice BP Sinha, in his tenure as CJI, never selected him for a Constitution bench).

Lord Hewart laid the dictum that "justice must not only be done, but must also be seen to be done". Therefore, there must be no discrepancy in the composition of benches that pronounce justice. Yet if the wall of prerogative is pierced, it would reveal that there are such discrepancies in the composition of constitutional benches.

The press conference only brought the consciousness of the country, especially the legal fraternity, back to the question of MoR. It was not the first time that the issue had raised hackles within the judicial community. The tenure of Justice P Sathasivam as CJI, for instance, saw three Constitution-bench judgements. While Justice Singhvi (the senior-most judge of the Supreme Court at the time) was not part of even one Constitution bench, Justice Bobde was part of all three, though he at the time was a junior judge, and so on.

The practice of preferring junior over senior judges for constitutional benches is not a rare phenomenon. As seen in the case of CJIs from Justice Sathasivam to Justice TS Thakur, it has been a regular practice. The concern with this trend is not merely that the administrative side of the Supreme Court suffers from inefficiencies but also relates to how jurisprudence is evolving.

There are chances of a void between judges, which for the first time became apparent when the press conference was held. Further, the incubation of "pick-and-choose" or "favorable selection" is very likely in this void.

Legal scholar Nick Robinson's study shows that this system makes CJIs "dominant". This dominance and the incubation of favorable selection strikes against the spirit of the Constitution, which confers upon judges the right to give dissenting opinions through Article 145(5).

Justice Fazl Ali's dissenting opinion in AK Gopalan v. Union of India paved the way to define what is "just, fair and reasonable" in Maneka Gandhi v. Union of India. The importance of dissent in the jurisprudential evolution of law expands to a variety of celebrated judgements, all founded upon previous dissents. Justice Dave's dissent in the validity of the National Eligibility-cum-Entrance Test, later turned out to be the majority view when the case was heard by a Constitution bench.

Further, dissenting opinions inform the idea of an independent judiciary. It displays the acceptance of multiple views within the same institution. However, the repetition of benches and exclusion of senior judges has something to do with the decreased rate of dissent, which ultimately influences the idea of an independent judiciary.

There have been only five dissents in the Supreme Court from 2013 to 2017 (from Justice Sathasviam's to Justice Thakur's tenures as CJIs). While the total number of cases decided by the Constitution benches in the same period reaches up to 29. The dissenting behavior of the Constitution bench has changed over time. The same period marks the exclusion of senior judges like justices Singhvi and Anil Dave from the benches. The repetition of benches also haunts the idea of an independent judiciary.

A bench comprising of CJI Lodha, and justices Khehar, Chelameswar, Sikri, and Nariman superseded about 15 senior judges (two of them were senior to at least three judges present on the bench, while 13 were senior to at least two judges on the bench). This bench was repeated four times and none of the judgements pronounced by it saw any dissenting views expressed.

The Supreme Court in these instances dealt with important matters including the Constitutionality of the National Tax Tribunal Act and the constitutionality of the reservation policy in promotions.

However, the focus here is not on the veracity of judgements pronounced but on the prerogative of the MoR, which skipped the induction of 15 senior judges to the bench in matters of such importance. Also, after justice Chelameswar's sole dissent in the National Judicial Appointments Commission (NJAC) case, he was not made a part of 10 subsequent Constitution benches during the tenure of Justice Thakur as CJI. The observations mark a pattern wherein dissent, exclusion, decreased ratio of dissent, and independence of the judiciary are correlated.

This phenomenon subjects the independence of the judiciary to the administrative prerogatives of the MoR. An independent judiciary is an essential feature of the Basic Structure doctrine, which the Supreme Court has reiterated time and again. Since the SCAORA (the second judges' case) judgment, the core question remains whether MoR supports the independence of the judiciary.

The Supreme Court has time and again reiterated that MoR comes brings certain objective criteria which the CJI has to keep in mind while allocating cases to benches, such as the specialisation of the judge, pendency of cases, capacity of a judge to handle a case, and others. However, these criteria cannot be regarded as concrete standards and the CJI can allocate the cases on other grounds as well.

The line of defense generally taken for defending the Master of Roster prerogative has been of judicial discipline. The Supreme Court has often said that if many views are taken to allocate cases, there is a possibility that of chaos as judges would argue over what cases to rule on. Therefore, the burden of MoR should only lie with the CJI. The principle of delivering justice should be the guiding light for allocating cases. Therefore, the real test is whether the MoR can achieve this objective. Can it be said that judicial discipline is a subset of judicial independence?

Moreover, judicial independence is a part of the Basic Structure, so if judicial discipline is a subset of judicial independence, then it is also a feature of the Basic Structure. Arguably, if there is no judicial discipline, there is a possibility it would impact the independence of the judiciary. If Supreme Court judges started handpicking cases and disregarding the roster, it would impact the administration of justice and thus the independence of the judiciary. Therefore, it is not wrong to hold judicial discipline as a part of judicial independence.

Even if we academically establish judicial discipline as an essential part of the Basic Structure, the next logical question would be whether the MoR is an essential mechanism for judicial discipline. Can judicial discipline be achieved through any other mechanism—perhaps even a collegium? The only way for MoR to withstand the test of Basic Structure is by proving there is no alternative to it to maintain judicial discipline and allocate cases. If there is a possibility of an alternative mechanism, then there is no essentiality of the MoR.

Further, it needs to be proved that the MoR is violating any of the Constitution's established tenets. A serious allegation against the MoR is its uncertain nature. Its unpredictability also tends to move the MoR closer to an arbitrary exercise, which is less than desirable. However, most of the Basic Structure questions arise in cases of a violation of a fundamental right. Therefore, we need to test the MoR mechanisms against Part III of the Constitution.

There is a remote connection between the MoR and fundamental rights. A judge's cognitive capacity plays a vital role in the outcome of a case before a court. Therefore, there surely is a nexus between how cases are allotted to a bench and fundamental rights. If the MoR can impact fundamental rights, then we can question it on a more substantive test of "manifest arbitrariness". If it withstands this test, then it can be tested on the scale of essentiality against the Basic Structure.

If a particular principle is normatively aligned with the Grundnorm of the Indian Constitution, then it surely qualifies to be part of the Basic Structure. More simply, if a principle is inherently contradictory to the Constitutional scheme, then it surely cannot stand the Basic Structure test.

(Ashit Kumar Srivastava is an assistant professor of law and Shaileshwar Yadav is a student at the National Law University, Jabalpur. The views are personal.)