By now, the recent events that have convulsed the Supreme Court in an unseemly controversy have been discussed threadbare. In this post, I do not intend to talk about the broader issues of judicial politics or institutional credibility. I want to focus on something more specific, drawing from a post I wrote here a few months ago: the manner in which power has been concentrated in the office of the Chief Justice, coupled with the uniquely polyvocal character of the Indian Supreme Court, raises some serious challenges for constitutionalism and the rule of law. The events of the last few days have provided us with textbook examples of these challenges – and now is the time, if there ever was one, to think seriously about them.

In particular, I want to focus on the order passed by the Constitution Bench on November 10th, 2017. This bench was constituted on the basis of a reference from a two-judge bench that same morning. In their order, Justices Sikri and Bhushan had noted that the petitioner’s lawyer had brought to their attention an order passed the day before, in a similar writ petition, referring the matter to a Constitution Bench. Consequently, they were placing the matter before the Chief Justice for “appropriate orders”.

The background was this. Two separate petitions had been filed, asking for an impartial SIT investigation into allegations that a retired judge of the Odisha High Court (among others) had been taking bribes to “fix” a matter that was being heard in the Supreme Court. One of those petitions had been “listed” before the Court of Justices Sikri and Bhushan. The second petition was “mentioned” on Thursday, the 9th of November in Courtroom No. 2, and listed for immediate hearing on the same day at 12 45 PM. During the course of the hearing, Justice Chelameswar noted that the allegations were serious, and referred the matter to be heard by the five senior-most judges of the Supreme Court on Monday, the 13th of November. It was this referral that Justices Sikri and Bhushan took note of when the other (first) petition came up for hearing before them on the 10th.

For those unfamiliar with Supreme Court lingo: a “mentioning” refers to an oral plea by lawyers, normally before the Court sits for its regular hearings, and normally requesting that an urgent case be listed for hearing at short notice. Cases that have not already been assigned to benches are mentioned before the Chief Justice; in the present case, the Chief Justice was sitting in a Constitution Bench hearing the Delhi vs Union of India case, and therefore, as per convention, mentionings  took place in Courtroom No. 2. This was Justice Chelameswar’s court, and this was the context in which the second petition came before him.

After Justices Sikri and Bhushan referred the matter to the Chief Justice on the morning of November 10th, the Chief Justice constituted a bench to hear it that same afternoon. The bench consisted of himself and four other judges. In a short order, that bench effectively annulled the order of reference passed by Justice Chelameswar the day before.

The justification given by the bench was as follows: every Court has two “sides” – the judicial side (that is, hearing and deciding cases), and the administrative side (taking administrative decisions such as listing cases). On the judicial side, the Chief Justice is only “first among equals.” However, on the administrative side, he is the “master of the roster”; that is, “he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.” Consequently:

“… neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

The Constitution Bench therefore held that “any order contrary” to these principles (i.e., Justice Chelameswar’s order) was not binding on the Chief Justice. Soon afterwards, the Chief Justice himself constituted a three-judge bench to hear the case on merits. The bench – which consisted of three judges who had sat in Friday’s Constitution Bench and signed on to the above order – heard the case today, and have reserved it for judgment tomorrow.

So far, so straightforward. The problem, however, is this: the FIR in question – on the basis of which the CBI enquiry was taking place, and which the petition sought to have replaced by an SIT – implicated the Chief Justice himself. The Chief Justice was not named in the FIR; however, the case that the accused – the retired judge of the Odisha High Court – was claiming to “fix” was being heard by a bench presided over by the Chief Justice. In other words, the principal accused claimed that he could fix a Supreme Court bench on which the Chief Justice was sitting.

Everyone is familiar with the basic legal principle of nemo judex in causa sua, which translates to “no person shall be a judge in his own cause.” It is clear, therefore, that the Chief Justice could not hear the petition on merits. However, unlike any other judge of the Supreme Court, the Chief Justice’s involvement with a petition is not limited to hearing it on merits. As we have seen, the Chief Justice being the “master of the roster” implies both that he decides who should hear it, and when it should be heard. On November 10th, the Chief Justice exercised both those powers respect to a petition on a subject matter that, at least, implicated him.

Contrary to what might appear at first blush, the Chief Justice’s powers on the administrative side are not minor matters. The power to decide when a case will be heard implies a power to delay its hearing (that did not happen in this case). And the power to decide who shall hear a case implies a non-trivial level of control over the outcome. As we have discussed before, the Supreme Court is a poly-vocal Court: twenty-six judges sit in thirteen courtrooms, speaking in different and sometimes contradictory voices. It’s trite to say that outcomes of cases are inevitably influenced by judges’ legal philosophies (I have earlier taken examples of death references being listed before abolitionist of pro-death penalty judges, and labour matters being listed before pro or anti-labour judges). There is nothing wrong or even abnormal about this – every judge has, and should have, a legal philosophy that influences how she decides cases. It is unlikely that anyone still believes in the idea of mechanical jurisprudence, which treats law as a logical syllogism with mathematically correct answers.

But while there is nothing wrong with judges having legal philosophies, we can immediately see how, in the collegial atmosphere of the Supreme Court, where judges know each other well (and indeed, the senior judges having appointed junior ones), the Chief Justice’s power to decide who shall hear a case vests substantial power in that office. Specifically, take the case under discussion: the decision of whether or not to appoint an SIT would depend, to a large extent, upon the activist or conservative proclivities of a judge, their notion of the separation of powers, the sanctity they attach to the Code of Criminal Procedure, and so on.

The above discussion should make it clear that in the present case, there was a clear and direct clash between two principles: the Chief Justice being the “master of the roster” on the administrative side, and “no person shall be a judge in his own cause.” Which one should prevail? The answer, with respect is obvious. As the Constitution Bench itself acknowledges, the “master of the roster” stems from Supreme Court Rules, and conventions. Nemo judex, on the other hand, is one of the most basic and fundamental principles of justice. The Chief Justice is “master of the roster” for instrumental reasons and administrative convenience. But without nemo judex, justice cannot exist.

What, then, is the outcome in a clash like this? The answer is: the rule of seniority. Succession to the Office of the Chief Justice is by virtue of seniority, and the presiding judge in Courtroom No. 2 is the next in line after the Chief Justice. Consequently, when the Chief Justice is precluded from acting as the “master of the roster”, that responsibility must devolve on the presiding judge in Courtroom No. 2.

Looked at this way, Justice Chelameswar’s order on the 9th of November was not procedurally irregular. The Chief Justice having been disqualified by the principle of nemo iudex, it was Courtroom No. 2 that, temporarily, became Courtroom No. 1, and the administrative powers of the Chief Justice vested in his successor. Had Justice Chelameswar’s order been passed by the Chief Justice, it would have been entirely regular; because the Chief Justice was disqualified from dealing with the matter at all, the order in question would have to be treated as an order of an (acting) Chief Justice, and deemed to be regular.

This, I would suggest, is the only way to ensure that the “master of the roster” principle does not turn into an impenetrable shield for whoever it is that occupies the office of the Chief Justice, while she occupies it. The “master of the roster” principle assumes that the incumbent Chief Justice will always be entirely honest and maintain the highest standards of integrity. Of course, that is a reasonable assumption to have; however, institutions are designed not on the basis that the occupants of high office will be honest, but with the objective of ensuring their survival on the rare occasion that an occupant is not honest.

The Constitution Bench’s interpretation of the “master of the roster” principle is unfortunate, because it effectively raises the office of the Chief Justice above the institution of the Supreme Court. It is unfortunate because it places institutional integrity in the hands of one man or one woman. It is unfortunate because it fails to ring-fence a vitally important public institution against the possibility of an implosion. And of course, it is unfortunate because it elevates an administrative rule above one of the most basic and fundamental principles of justice.

For that reason, the order merits swift reconsideration. But it is also an opportunity for all of us to reflect more deeply on the institutional structures that we have – and continue to – accept without demur or dissent.