CONTEXT

The Supreme Court recently laid to rest the proceedings inquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former Chief Justice of India (CJI), Ranjan Gogoi. After two years, the proceedings remained inconclusive.

SINGULAR POWER WITH CJI

• The end of proceeding into enquiry was a missed opportunity.
• The court failed to recognise that if recent experiences are anything to go by, the threat to judicial independence comes from the singular power of the CJI as the Master of the Roster – i.e., the vesting of exclusive discretion in the Chief Justice to constitute benches and allocate cases.
• It was this power which enabled Justice Gogoi to institute suo motu proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
• Thus, the Master of the Rooster power makes the CJI’s office a sole point of defence of the Court against executive interference.
• However, this has a flip side. With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a malleable CJI.
• Hence, a persuadable Master of the Roster carries the danger of producing a persuadable Court.

RELUCTANCE TOWARD REFORMS

• Foresighting these concerns B.R. Ambedkar had warned the Constituent Assembly: “… after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have”.
• Yet, the Supreme Court has been reluctant to dilute this power.
• In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
• In Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.
• Therefore, while the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.

CONCERNS

• Reforms in the Indian judiciary have been a continuing project, evident from the institution of the collegium system in the appointment process. However, this system has failed to keep executive interference at bay from the Supreme Court.

This is for two reasons:

1. There is an attractive lure of post-retirement jobs;
2. As the privilege of Master of the Rooster shows, the CJI’s allocation of cases is an unchecked power.

WAY FORWARD

The forthcoming judicial reforms should address these two issues by providing for:

1. A cooling-off period between retirement and a post-retirement appointment.
2. The power of the Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion. This can be done by vesting power with a larger cohort of serving judges based on public debate and introspection within the institution of the Supreme Court.

Reference:

1. https://www.thehindu.com/opinion/op-ed/master-and-the-roster/article33965207.ece