SC judges vs CJI Dipak Misra: How cases are allocated in India’s top court
The recent controversy over allocation of cases and constitution of benches in the Supreme Court has brought into focus the process by which cases are assigned to judges.
Justices J Chelameswar, Ranjan Gogoi, Kurian Joseph and MB Lokur claimed on Friday that Chief Justice Dipak Misra has “selectively assigned cases” to preferred benches.
But how are cases assigned? According to three retired Chief Justices of India (CJIs) and two former judges of the top court , there is no written procedure in the top court that is followed to allocate cases. None of the CJIs or judges wanted to be identified.
When a case is filed, its details and subject matter are scrutinized by the SC registry, which receives and processes all documents. One CJI said the cases are categorised on the basis of subject matter. There are 47 broad categories such as letter petitions, public interest matters, taxation, service matters and criminal appeals. Each category has multiple sub-categories.
The registry notifies the roster for the benches, which is done on the basis of the subjects (or categories), and the CJI approves it. More than one bench is allocated the same subject matter.
Details of a fresh case are entered into a computer, which automatically assigns the matter to the bench. “Suppose an appeal in a criminal case is filed, the computer, on being fed with the prayers, marks the matter to the bench as per the roster. If there are three benches dealing with a particular category then the matters are marked sequentially to the three benches,” a second CJI who actually dealt with “sensitive” cases as a junior judge said.
That’s one of the grievances raised by the four judges — that sensitive and important cases are being heard by junior judges in the apex court.
Benches in the SC usually comprise two judges. Larger ones are formed on the orders of the CJI as and when required.
The CJI can issue a specific instruction to list a case before a particular bench. The former judges and CJIs said the CJI, as the master of roster, has the prerogative to mark the sensitive cases to specific benches but that the process should not be arbitrary. As the head of the institution, the CJI also has the discretion to set-up larger benches.
Whether a particular appeal is of a sensitive nature, cannot be known at filing, the third CJI said.
According to him, it’s the registry that decides to bring a case to the CJI’s notice. “The CJI is told by registry officials that a case is sensitive. It is then left to the CJI to take a call whether he wants to mark it as per the roster, retain it with himself or let another bench hear it. As per the convention, the CJI, on being informed in advance, either hears the matter or refers it to the top four judges in seniority after him,” a CJI, who retired a few years back, said.
In the current controversy, the four judges pointed out in their letter on Friday that the CJI had out of turn marked the petition related to appointment of judges to a bench led by a judge who is at number eleven in seniority. The plea , they claimed, should have been heard by a constitution bench since five judges had decided the validity on the controversial NJAC law on the appointment of judges.
Similarly, the CJI broke convention when he hurriedly set-up a constitution bench in the medical college case and did not include any of the top four judges in it, according to allegations made by one of the four judges. As per convention, a constitution bench usually comprises one senior judge other than the CJI.
The exclusion of Justice Chelameswar and Justice SA Bobde from the bench hearing petitions against Aadhaar is also a departure from practice, lawyers said.
They added that the two judges should have been part of the constitution bench since they, along with Justice SA Nazeer, were the ones who referred petitions against Aadhaar to a larger bench. When contacted, CJI Misra refused to comment.