“There have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment.” This sharp critique of the Supreme Court of India was not leveled by a losing appellant or civil society group, but rather by Justice Jasti Chelameswar. On January 12, 2018, Justices Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph, the four most senior justices of the Supreme Court of India (other than the Chief Justice), took the extraordinary step of speaking to the public about their concern with bias in how Chief Justice of India (CJI) Dipak Misra was assigning cases. The four justices accused Chief Justice Misra of selectively setting benches to shape the outcome of particular cases, which not only cuts against the rule of law and fundamental fairness, but also implicates broader concerns of judicial corruption. In publically criticizing the assignment practices of the current Chief Justice, these Justices set off an unprecedented institutional crisis for the court. Stabilizing the institution and combating corruption and bias requires serious action, including reducing the unilateral power the CJI has over case assignment.
To appreciate the significance of the CJI’s power of case assignment, and the ways this power can be abused, a bit of background on the Court is necessary. The Supreme Court of India is comprised of the CJI and up to 30 justices, although it currently only has 24 serving justices. The Court hears cases in division benches (comprised of two or three justices), and these division benches come together to form a constitutional bench (comprised of five or more justices) to settle fundamental questions of law. The CJI has the sole authority to set up division benches and assign cases, resulting in the label of the CJI as the “master of the roster.” That authority can be—and allegedly has been—abused. For example, in the Prasad Educational Trust case, although allegations of bribes paid to fix the outcomes of Supreme Court cases implicated Chief Justice Misra, he nonetheless listed the case in front of himself and several relatively junior Justices. When asked by an attorney in the case to recuse himself, the Chief Justice refused and threatened to hold the attorney in contempt.
In response to the criticisms leveled by his four colleagues regarding biased assignment of cases, Chief Justice Misra took a striking step of publicizing, for the first time, the Supreme Court’s roster, which details which types of cases will be heard by which justices. The publically released roster system, which took effect on February 5 and was recently altered, assigns cases based on subject category to different justices. For example, the Chief Justice himself is assigned, among other categories, social justice matters, election matters, contempt of court matters, habeas corpus matters, and public interest litigation (PIL) cases. The roster details subject categories for the twelve most senior justices of the Supreme Court, and there are overlapping categories (e.g. criminal matters, civil matters, etc.) between the justices. But while publication of the roster certainly makes the assignment process more transparent, it nevertheless falls short of addressing the CJI’s unchecked power and discretion in allocating cases for four primary reasons:
- First, the roster only indicates the presiding judge over each division bench; the CJI retains unaccountable authority to appoint the second or third judge to each division bench.
- Second, the Chief Justice kept a disproportionate number of important cases for himself, including all PIL and all social justice cases, which can include many landmark cases.
- Third, it is unclear how the roster was prepared, which dramatically reduces the clarity and transparency provided.
- Fourth, and most importantly, the roster system is entirely discretionary and not mandated or enforced, which means that Chief Justice Misra or future CJIs could change the roster or simply not follow it. In fact, such a roster existed even during the allegations of corruption and bias against the Chief Justice.
Since the publicized roster system falls short of addressing concerns of unchecked discretion, what is the alternative? There is no easy answer to this question. The Indian Supreme Court could follow the model of the highest courts of peer nations, which allocate cases in a variety of different ways. For example, in the United States, although the Supreme Court only hears cases before all nine justices, lower Courts of Appeal hear cases in randomly drawn panels. In the United Kingdom, the court registrar assigns cases to panels of five justices, although the ultimate authority lies with the President and Deputy President of the court. In the High Court of Australia, the Chief Justice proposes a roster of no less than two justices, but this power of assignment is recommendatory and not determinative (for example, Justice Starke would often sit in cases even when his name was not included in the roster).
Chief Justice Misra’s release of the roster, although providing additional transparency, is an insufficient solution to the problem. Adding to the complexity here, the allegations of corruption and abuse against Chief Justice Misra have resulted in a petition for his impeachment that has been signed by dozens of Members of Parliament, and that may move forward in the coming weeks. Whether Chief Justice Misra is impeached or not, the Supreme Court of India needs to combat judicial corruption and bias by embracing institutional reform that reduces the power of the CJI and instead adopts an assignment system similar to that in other countries. Whether random assignment, a tenured career registrar to assign cases, a system of comprehensive guidelines, or non-binding recommendations from the Chief Justice, one thing is clear: for real reform, the CJI can no longer be the “master of the roster.”