Allocation of cases to several benches by the Chief Justice of India whether in the Supreme Court or in the High Court by the respective Chief Justices has always been a sensitive issue. Though the Chief Justice is supposed to be the master of the roster i.e. he has prerogative in allocation of cases to particular benches of the court but that cannot be done in arbitrary and selective manner. Certain precedents and rules have been evolved under which particular benches are fixed to hear particular types of cases and there cannot be departure from this practice.
A well established precedent has further been evolved, that if a matter is being heard by a particular bench, it cannot be transferred to any other bench by the Chief Justice so long that particular bench has been hearing that matter. These include part-heard matters also. Important and sensitive cases which may have serious repercussions in eroding democratic values and abridging fundamental rights, have to be assigned to the respective benches without any distinction. While allocating cases settled, judicial discipline and decorum has to be maintained by the respective Chief Justice.
However it appears that the present Chief Justice of India has been flouting these well established judicial norms and allocating cases in selective manner, and even not listing the cases before those benches which had earlier been hearing and dealing with such cases. The senior four judges of the Supreme Court have rightly said that unless this institution i.e. the Supreme Court is preserved and it maintains its equanimity, democracy will not survive in this country.
Flouting such settled judicial norms always create tensions and heartburning –not only to the litigants but also to the judges who are entitled to hear such cases. There have been instances when benches are changed and matters are transferred from a particular bench to the bench which is suitable to the ruling party in power. For example in December 1984, in the wake of brutal massacre of around 3000 Sikhs in the capital of Delhi, a writ petition was filed on behalf of PUDR (People’s Union For Civil Liberties) in the Delhi High Court praying for instituting a commission of inquiry. Govt. opposed the petition tooth and nail but Justice Rajindar Sachar issued notice and asked the govt. to submit its reply. The matter was fixed for some date in January 1985. However, to the surprise of all, when High court reopened in January 1985 after winter vacation, Mr. Rajindar Sachar was transferred to the different side of the roster and the said writ petition was fixed before the other judge who dismissed the petition. Mr. Rajindar Sachar was very angry but he maintained his cool.
I cite another example. When Mrs. Indira Gandhi came to power in 1980, her government constituted Kudal Commission to investigate allegations against the Gandhian institutions for using their charitable organizations for political purposes and thus charged them for misusing of funds. These institutions included Gandhi Peace Foundation, Sarv Sewa Sangh, Association of Voluntary Organizations, Citizens For Democracy etc.etc. These organizations were in the forefront during JP movement(1973-75) . They were also very active in opposing ‘the emergency’ which was imposed in June 1975.
It was obvious that the motive of the then Congress government in establishing the Kudal Commission was to punish and victimize these organizations for their role in JP Movement. The Kudal Commission started issuing notices to these organizations on baseless allegations. The organizations had engaged senior advocate S.C. Malik for their defence. S.C.Malik was very reputed lawyer, was a ‘Royist’, had done many landmark cases. During the emergency, he was the first one to take up cases on behalf of the detenues, including the case of Kuldip Nayar whose detention was soon quashed by the High Court of Delhi. Malik had the rare distinction of being the advocate in the judicial history of independent India who, on behalf of the combined opposition, had cross-examined the sitting President of India, namely Mr. V.V.Giri in the proceedings in the Supreme Court as Giri’s election was challenged therein.
Kudal Commission started issuing notices to the said Gandhian institutions and the same were challenged in the High Court of Delhi. As per roster, the cases came to be heard by the court of Justice T.P.S.Chawla who started issuing stay orders against the various notices of the Kudal Commission. While these cases were being heard by Justice Chawla, one fine morning we found that the cases were listed before the bench of the Chief Justice. We were all surprised as It was very unusual and was against the norms. When the hearing started in the court of Justice Chawla, the conversation between the Chief Justice and S.C.Malik took place somewhat in the following manner, coupled with heated exchanges:
Malik to the Chief Justice: How this case has been listed before your Lordship? It was being heard by the Court of Justice Chawla!
Chief Justice: I have assigned this case to my court.
Malik: How can you do it? It is against the well settled precedents!
Chief Justice: I have the power to do it. It is for me to decide the allocation of the cases.
Malik, in heated voice: You cannot do it. You have committed the contempt of the court of Justice Chawla by taking away this case from his roster. You have to send the case back to the said court.
Chief Justice: I will not. I am acting under my prerogative.
Malik, shouting at the Chief Justice: If you keep this case with you for hearing, in that case I shall file contempt of court petition against you in the court of Justice Chawla.” Malik came out of the court in anger.
Soon we came to know that the Chief Justice had sent the case back to the court of Justice Chawla.
I asked Malik as to how he could threaten the contempt proceedings against the Chief Justice! And what if Justice Chawla declined to issue contempt notice to the Chief Justice – a fellow judge of the court? Malik replied with confidence,“ If the Chief Justice had not sent the case back, I would have filed contempt petition against the Chief Justice and I am sure that Justice Chawla would have issued contempt notice to the Chief Justice.” And he added with a smile “Chief Justice knew this.”
Thus the Chief Justice was wise enough to avoid the confrontation.