Holding

The Chief Justice of India, in his individual capacity, is the Master of the Roster and the sole authority to constitute benches and allocate cases; the term ‘Chief Justice’ in the Rules cannot be read as a collegium.

Summary

Senior advocate Shanti Bhushan filed a writ petition under Article 32 seeking a declaration that the term “Chief Justice” in the Supreme Court Rules, 2013 should be read as a collegium of the five senior judges, thereby limiting the Chief Justice of India's sole authority to allocate cases and constitute benches. The Court examined whether the Constitution or the Rules confer such a collective interpretation and whether the power to prepare the roster is a prerogative of the Chief Justice alone. Relying on the Constitution Bench decision in Campaign for Judicial Accountability and Reforms and the long‑standing convention that the Chief Justice is the Master of the Roster, the Court held that the expression “Chief Justice” refers to the individual Chief Justice and not to a collegium. It further observed that the collegium principle applies to judicial appointments, not to case allocation, and that reading the term as a collegium would be impracticable and contrary to established practice. Consequently, the petition was dismissed and no direction was issued to alter the existing procedure.

Issues considered

The expression ‘Chief Justice’ in the Supreme Court Rules, 2013 and Article 145 should be interpreted as ‘collegium’ of the five senior judges for case allocation and bench constitution.
Whether the power to allocate cases and constitute benches is a constitutional prerogative of the Chief Justice of India alone or requires collective decision by a collegium.
Whether a writ of mandamus or prohibition can be issued to compel the Chief Justice to follow a different procedure for preparing the roster.

Legislation cited

Constitution of Indias. Article 124, s. Article 130, s. Article 145, s. Article 146
Government of India Act, 1935s. Section 200, s. Section 214

Subjects

Chief Justice of IndiaMaster of RosterCase allocationBench constitutionSupreme Court Rules 2013Article 145CollegiumJudicial administrationWrit petitionArticle 32

Judgment

972 [2018]REPORTS
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A SHANTI BHUSHAN
v.
SUPREME COURT OF INDIA
THROUGH ITS REGISTRAR AND ANOTHER
B (Writ Petition (C) No.789 of 2018)
JULY 06, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India – Art.145 – Administrative authority of
Chief Justice of India in preparing roster for allocation of cases –
C
Clarification of – Held: Per A.K. Sikri, J.: The Constitution is silent
on the role of the ‘Chief Justice’ – However, the Constitution Bench
in the case of Campaign for Judicial Accountability and Reforms
had held that Chief Justice alone has the administrative control of
the Supreme Court and he is the Master of the Roster and he alone
D has the prerogative to constitute the Benches of the Court and
allocate cases to the Benches so constituted – Legal position
contained in the various judgments of the Supreme Court is based
upon healthy practice and sound conventions which have developed
over a period of time and that stands engrafted in the Supreme
Court Rules – The two most obvious functions of the ‘Chief Justice’
E
are to exercise judicial power as a Judge of the Court on equal
footing as others, being ‘among equals’ and to assume responsibility
of the administration of the Court, which gives him the ultimate
authority for determining the distribution of judicial work load –
Per Ashok Bhushan, J. (concurring): Sub-article (1) of Art.145
F provides that subject to the provisions of any law made by Parliament,
the Supreme Court may from time to time, with the approval of the
President, make rules for regulating generally the practice and
procedure of the Court, including the various subjects as enumerated
in sub-article (1) – The power of the Chief Justice to allocate cases
flows from the rules framed u/Art.145 – The Chief Justice of India
G
has been exercising the jurisdiction of formulating the roster for
convenient distribution of Court’s business and constituting the
benches from time to time – Furthermore, it is also clear from the
law laid down by the Supreme Court in various Judgments that
allocation of business of Court by the Chief Justice not only flows
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from the Constitutional provisions but it is the prerogative of the A
Chief Justice and which is a convention followed from the very
beginning – Supreme Court Rules, 2013 – Practice and Procedure.
Supreme Court Rules, 2013 – Whether the expression ‘Chief
Justice’ in the Supreme Court Rules is to be read as ‘Collegium’ of
first five Judges – Held: Per A.K. Sikri, J.: In case the expression B
‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult
to have smooth day to day functioning of the Supreme Court –
Assigning of cases is undertaken by the Chief Justice on daily basis
in contrast with the meetings of the Collegium for the purpose of
appointment of Judges, which is infrequent – Thus, meeting of
Collegium for the purpose of assigning the cases to a particular C
Bench on daily basis is impracticable – Per Ashok Bhushan, J.
(concurring): Art.145 empowers the Supreme Court to frame rules
with the approval of the President and the Rules framed by Supreme
Court u/Art.145 specifically refers the Chief Justice in Chapter VI,
the Chief Justice, who is to nominate the bench for hearing every D
case, appeal or matter – There is no indication in any of the
Constitutional provisions or rules framed thereunder that allocation
of cases and formation of benches, Chief Justice should be read as
collegium – Practice and Procedure.
Disposing of the Writ petition, the Court E
HELD:
Per A.K. Sikri, J.:
1. The ‘Chief Justice’ in his individual capacity is the Master
of Roster and it cannot read as Collegium of first three or five F
Judges. Thus, it is his prerogative to constitute the Benches
and allocate the subjects which would be dealt with by the
respective Benches. [Para 20] [995-D-E]
2. The Constitution is silent on the role of the ‘Chief
Justice’. There is no specific provision relating thereto either in
G
the Constitution or even in any other law. The legal position
contained in the earlier judgments is based upon healthy practice
and sound conventions which have been developed over a period
of time and that stands engrafted in the Supreme Court Rules.
In fact, it is dominated by two stereo-types. One, perpetuated by
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974 SUPREME COURT REPORTS [2018] 12 S.C.R.

A the common belief and widely endorsed and accepted by all the
stakeholders, is that the ‘Chief Justice’ occupies the role of ‘first
among equals’. The phrase ‘among equals’ is generally relatable
to the judicial function designed to emphasise the fact that voices
of the members of a particular Bench, which may include ‘Chief
Justice’, are given equal weight and that in deciding cases, the
B
opinion of the ‘Chief Justice’ also carries same weight and is no
different from those of other Members of the Bench. Thus, in a
given case, there is a possibility that the view of the ‘Chief Justice’
may be a minority view and in that eventuality, the outcome of
case would be what majority decides. The word ‘first’ in the
C aforesaid expression signifies only the fact that the ‘Chief Justice’
is the senior most Judge of the Court. [Para 21] [995-E-H;
996-A]
3. The second stereotype is that being the ‘Chief Justice’
and senior most Judge of the Court, he is empowered to exercise
D ‘leadership’ on the Court. In this role, the ‘Chief Justice’ is
expected to be the spokesperson and representative of the
judiciary in its dealings with the Executive, Government and the
Community. For this purpose, the ‘Chief Justice’ has a general
responsibility to ensure that the Court promotes change and
reform as appropriate. The judicial reforms, which is a continuing
E process in order to ensure that there is real access to justice,
also becomes the moral responsibility of the ‘Chief Justice’. Such
reforms in the administration of justice are not limited to the
judicial aspects (i.e. how the cases need to be decided, case
management and court management, speedy disposal etc.) but
F also include reforms on the administrative side of the legal system
as well. Procedural reforms and implementation thereof is an
integral part of the judicial reform. The ultimate purpose is to
dispense justice, which is the highest and noblest virtue. Again,
in this role, the ‘Chief Justice’ gets the authority and responsibility
for the administration of the Court, which gives him the ultimate
G authority for determining the distribution of judicial work load.
[Para 22] [996-B-E]
4. Under the Constitution, the Supreme Court is given the
authority to frame Rules for regulating generally the practice and
procedure of the Court, including various subjects as enumerated
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in sub-Article (1) of Article 145. Supreme Court Rules, 2013 A
which have been framed in exercise of such a power empowered
the Chief Justice to constitute the Benches and list particular
matters before such Benches. Similar powers are conferred upon
the Chief Justice of the High Courts in the Rules framed by
respective High Courts for regulating its procedure.
B
[Para 23] [997-A-B]
5. At the same time, the power of the ‘Chief Justice’ does
not extend to regulate the functioning of a particular Bench to
decide cases assigned to him once the cases are allocated to that
Bench. A Bench comprising of puisne Judges exercise its judicial
function without interference from others, including the ‘Chief C
Justice’, as it is supposed to act according to law. Therefore,
when a particular matter is assigned to a particular Bench, that
Bench acquires the complete dominion over the case.
[Para 24] [997-C]
6. It follows that the two most obvious functions of the ‘Chief D
Justice’ are to exercise judicial power as a Judge of the Court on
equal footing as others, being ‘among equals’ and to assume
responsibility of the administration of the Court. [Para 25]
[997-D]
Campaign for Judicial Accountability and Reforms v. E
Union of India & Anr. (2018) 1 SCC 196 – followed.
State of Rajasthan v. Prakash Chand & Ors. (1998) 1
SCC 1 : [1997] 6 Suppl. SCR 1 ; Asok Pande v.
Supreme Court of India through its Registrar and Ors.
[2018] 3 SCR 337 – relied on. F
Supreme Court Advocates-On-Record Association and
Others v. Union of India (1993) 4 SCC 441 : [1993] 2
Suppl. SCR 659 ; S.P. Gupta v. Union of India and
Another (1981) Suppl. SCC 87 : [1982] SCR 365 ;
Ranjit Thakur v. Union of India and Others (1987) 4 G
SCC 611 : [1988] 1 SCR 512 ; Special Reference
No. 1 of 1998 (1998) 7 SCC 739 : [1998] 2 Suppl.
SCR 400 – referred to.

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A Per Ashok Bhushan, J. (Concurring)
1. The law laid down by this Court as is clear from
precedents, is that allocation of business of Court by the Chief
Justice not only flows from the Constitutional provisions but is
held to be prerogative of the Chief Justice and which is a
B convention followed from the very beginning. Apart from that,
the power of the Chief Justice to allocate cases flows from rules
framed under Article 145 of the Constitution of India.
[Para 20] [1015-F]
2. With regard to procedure and practice of Supreme Court,
C Article 145 empowers the Supreme Court to frame rules with
the approval of the President. The word practice and procedure
of the Court are wide enough to include practice and procedure
relating to preparation of roster and allocation of cases. The
Rules framed by Supreme Court under Article 145 specifically
refers that the Chief Justice is to nominate the bench for hearing
D every case, appeal or matter. There is no indication in any of the
constitutional provisions or rules framed thereunder that for
allocation of cases and formation of benches, Chief Justice should
be read as collegium. [Para 27] [1021-D-E]
3. The Attorney General rightly stated that allocation of
E cases and constitution of benches, if it is given in the multiple
hands, there shall be differences and hurdles in smooth
distribution of work. Thus, the submission of the petitioner cannot
be accepted that in allocating cases and formulating benches of
the Supreme Court, the word “Chief Justice” should be read as
F collegium, which submission is unfounded and is rejected.
[Para 28] [1022-A-B]
State of Rajasthan v. Prakash Chand & Ors. (1998) 1
SCC 1 : [1997] 6 Suppl. SCR 1 ; Inder Mani and
Others v. Matheshwari Prasad and Others (1996)
G 6 SCC 587 : [1996] 7 Suppl. SCR 400 ; Union of
India and Another v. Raghubir Singh (Dead) By LRs.
Etc. (1989) 2 SCC 754 : [1989] 3 SCR 316 ;
D.C. Saxena v. Hon’ble The Chief Justice of India
(1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677 ;
State of Uttar Pradesh and Others v. Neeraj Chaubey
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SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 977
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and Others (2010) 10 SCC 320 : [2010] 11 SCR 542 ; A
S.P. Gupta v. Union of India (1981) Suppl. SCC 87 ;
[1982] 2 SCR 365 ; Supreme Court Advocates on
Record Association and Others v. Union of India (1993)
4 SCC 441 : [1993] 2 Suppl. SCR 659 ; Special
Reference No.1 of 1998 (1998) 7 SCC 739 : [1998] 2
B
Suppl. SCR 400 ; Campaign for Judicial Accountability
and Reforms v. Union of India & Anr. (2018) 1 SCC
196 ; Asok Pande v. Supreme Court India through its
Registrar and Ors, (2018) 5 SCALE 481 : [2018] 3
SCR 337 – referred to.
Case Law Reference C

In the Judgment of A.K. Sikri, J.
[1993] 2 Suppl. SCR 659 referred to Para 3
[1982] 2 SCR 365 referred to Para 4
D
[1988] 1 SCR 512 referred to Para 6
[1998] 2 Suppl. SCR 400 referred to Para 8
[1997] 6 Suppl. SCR 1 relied on Para 13
(2018) 1 SCC 196 followed Para 14
E
In the Judgment of Ashok Bhushan, J.
[1997] 6 Suppl. SCR 1 referred to Para 4
[1996] 7 Suppl. SCR 400 referred to Para 15
[1989] 3 SCR 316 referred to Para 17 F
[1996] 3 Suppl. SCR 677 referred to Para 18
[2010] 11 SCR 542 referred to Para 19
[1981] 2 SCR 87 referred to Para 21
[1993] 2 Suppl. SCR 659 referred to Para 21 G
[1998] 2 Suppl. SCR 400 referred to Para 21
(2018) 1 SCC 196 referred to Para 33
[2018] 3 SCR 337 referred to Para 33
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978 SUPREME COURT REPORTS [2018] 12 S.C.R.

A CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 789 of 2018.
Under Article 32 of the Constitution of India.
Dushyant Dave, Sr. Adv., Prashant Bhushan, Ms. Cheryl D’
Souza, Ms. Priyanka, Amir Nabi, Omana Kuttan K., Advs. for the
B Petitioner.
K.K. Venugopal, AG, Tushar Mehta, ASG, Rohit Bhat, Adv. for
the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. The name of respondent No.2 is deleted
C from the array of parties, inasmuch as, having regard to the nature of
submissions made during hearing, which would be taken note of at the
appropriate place, respondent No.2 is not a necessary party.
2. The petitioner herein, who is a senior advocate practicing in
this Court and enjoys credible reputation in the profession as well as in
D public, has filed this writ petition under Article 32 of the Constitution of
India. In this writ petition, he seeks this Court to clarify the administrative
authority of the Chief Justice of India (for short, the ‘Chief Justice’) as
the Master of Roster and for laying down the procedure and principles
to be followed in preparing the Roster for allocation of cases.
E 3. It may be mentioned at the outset that the petition acknowledges
and accepts the legal principles that the Chief Justice is the “Master of
Roster” and has the authority to allocate the cases to different Benches/
Judges of the Supreme Court. It is also conceded that adherence to this
principle, namely, the Chief Justice is the Master of Roster, is essentially
to maintain judicial discipline and decorum. It is also stated that the Chief
F Justice is first among equals, meaning thereby all Judges of the Supreme
Court are equal with same judicial power, with Chief Justice as the senior
most Judge. At the same time, it is contended that this power is not to be
used to assert any superior authority by the Chief Justice and the power
is to be exercised in a manner that is fair, just and transparent. As the
G Master of Roster, it is also conceded that it is the Chief Justice who has
to decide as to which Bench will hear a particular case. The apprehension
expressed is that keeping in view the predisposition of particular Judges,
the Chief Justice may assign cases to those Judges to achieve a
predetermined outcome. This calls for, according to the petitioner, devising

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SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 979
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a more rational and transparent system of listing and re-allocation of the A
matters to avoid any such possibilities. As per the petitioner, the matters
need to be listed by strictly following the provisions of the Supreme
Court Rules, 2013 (hereinafter referred to as the ‘Rules’). These Rules,
no doubt, empower the Chief Justice to allocate certain cases by
exercising his discretionary power. The petitioner submits that in order
B
to ensure that such a discretion is exercised in a fair manner, the
expression ‘Chief Justice’ should be interpreted to mean ‘Collegium’
of first five Judges of the Supreme Court, as held by this Court in Supreme
Court Advocates-On-Record Association and Others v. Union of
India 1 (famously known as the “Second Judges’ case”). On the
aforesaid edifice, the petitioner has prayed for the following directions: C
“(a) That this Hon’ble Court may be pleased to issue a writ of
declaration or a writ in the nature of declaration or any other
appropriate writ, order or direction holding and declaring that
listing of matters must strictly adhere to the Supreme Court Rules,
2013 and Handbook on Practice and Procedure and Office D
Procedure, subject to the following clarification:
i) The words ‘Chief Justice of India’ must be deemed to
mean a collegium of 5 senior judges of this Hon’ble Court.
(b) That this Hon’ble court may be pleased to issue a writ of
declaration of a writ in the nature of declaration or any other E
appropriate writ, order or direction holding and declaring that the
consultation by the Registry Officials for listing purposes, if any
with the Hon’ble Chief Justice of India must include consultation
with such number of senior-most judges as this Hon’ble court
may fix in the interest of justice.
F
(c) That this Hon’ble Court may be pleased to issue a writ of
prohibition or a writ in the nature of prohibition or any other
appropriate writ, order or direction prohibiting the Hon’ble Chief
Justice of India and concerned respondents from listing any
matter contrary to the Supreme Court Rules, 2013 and Handbook
on Practice and Procedure and Office Procedure or picking and G
choosing Benches for the purpose of listing contrary thereto, with
the above modification of replacing ‘Chief Justice of India’ with
the collegium of 5 senior most judges of this Hon’ble Court.
1
(1993) 4 SCC 441
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980 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (d) That this Hon’ble Court may Clarify that when matters are
mentioned for urgent hearing/listing, only a date/time of hearing
would be fixed but the Bench to hear the matter would be
determined in accordance with the Rules.
(e) That this Hon’ble Court may be pleased to grant such other
B and further relief as may be deemed fit in the facts and
circumstances of the case and as may be required in the interests
of justice.”
4. Mr. Dushyant Dave, learned senior counsel appearing for the
petitioner, submitted that in certain cases, instances whereof are given
in the writ petition, the manner in which matters are allocated to certain
C Benches reflect that either there was no strict adherence to the Rules or
the transparency was lacking. He, however, at the outset, made it clear
that the petitioner does not seek to question the validity of any judicial
orders and/or judgments which have been rendered in those cases or in
other cases. The petition is confined to the scope and ambit of the
D powers of the Chief Justice in listing matters and to seek declaration
that the power must be exercised lawfully and on objective consideration,
thereby eschewing any subjective considerations. The entire thrust of
his submissions was, therefore, to suggest the ways and means for
achieving the same. In this behalf, he advanced the following propositions:
E (a) Constitution of India expressly confers powers on the Supreme
Court under Article 145 to make Rules “for regulating generally the
practice and procedure of the court” with the approval of the
President. Such Rules may include, ‘rules as to the procedure for hearing
appeals and other matters pertaining to appeals including the time within
which appeals to the Courts are to be entered’. Sub-Articles (2) and (3)
F thereunder fix minimum number of judges to sit for any purpose including
for deciding a case involving substantial question of law as to the
interpretation of the Constitution or a Reference under Article 143.
Article 124 establishes and constitutes the Supreme Court by
providing, ‘there shall be a Supreme Court of India consisting of a
G Chief Justice and, until Parliament by law prescribes a larger number
of not more than seven other Judges (original)’.
Thus, the expression ‘Supreme Court’ includes the Chief Justice
and other Judges of the Court. The power to frame Rules under Article
145 is, therefore, conferred upon the entire Court, which power includes
power to frame the Roster and direct hearing/ listing of matters.
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(b) Thus, although the Chief Justice is the Master of the Roll A
under the convention, the Constitution has departed from the conventional
Scheme to confer power upon the supreme Court.
(c) The expression ‘Chief Justice’ has been interpreted by a
Constitution Bench of this Court in S.P. Gupta v. Union of India and
Another2 (known as the “First Judges’ case”) to mean a ‘Collegium’. B
This was done to ensure a guard against the absolute power being
conferred upon the Chief Justice alone. It was observed in the said
judgment as follows:
“31...We are all human beings with our own likes and dislikes, our
own predelictions and prejudices and our mind is not so
C
comprehensive as to be able to take in all aspects of a question at
one time and moreover sometimes, the information on which we
base our judgments may be incorrect or inadequate and our
judgment may also sometimes be imperceptibly influenced by
extraneous or irrelevant considerations. It may also be noticed
that it is not difficult to find reasons to justify what our bias or D
predeliction or inclination impels us to do. It is for this reason that
we think it is unwise to entrust power in any significant or
sensitive area to a single individual, howsoever high or important
may be the office which he is occupying. There must be checks
and controls in the exercise of every power, particularly when it is
E
a power to make important and crucial appointments and it must
be exercisable by plurality of hands rather than be vested in a
single individual...”
This principle has been subsequently followed by this Court in the
Second and Third Judges’ case.
F
The interpretation so canvassed by this Court must equally apply
in respect of the power, if any, exclusively claimed by the Chief Justice
as the Master of the Roster. It is well settled that in a statute a particular
expression must receive the same and consistent meaning.
(d) Functions as ‘framing of Roster’ and ‘listing of important
and sensitive matters’ are extremely crucial and cannot be left to the G
sole discretion of the Chief Justice as per the law laid down in the First
Judges’ case. In any case, such exclusive discretion is anathema to the
constitutional scheme. It is, therefore, imperative that the expression
‘Chief Justice’ must mean the Supreme Court or, as held by this Court
2
(1981) Supp. SCC 87 H
982 SUPREME COURT REPORTS [2018] 12 S.C.R.

A in series of judgments, the ‘Collegium’ of five senior most judges, to
provide appropriate checks and balances against any possible abuse.
(e) The Rules framed under Article 145 of the Constitution confer
powers on the Registrar under Order III Rules 7 and 8 to deal with
preparation of lists and fixing of hearings of petitions, which would include
B appropriate listings. The matters be listed strictly as per these Rules.
5. To put it pithily, the submission is that once the Rules are framed,
matters should be listed and fixed for hearing as per the provisions,
particularly Order III Rules 7 and 8, thereof. Further, in any case, the
expression ‘Chief Justice’ has to assign the meaning by reading it as a
C ‘Collegium’ so that important and sensitive matters are assigned to
particular Benches by the Collegium of five senior most Judges, including
the Chief Justice.
6. Mr. Dave elaborated the aforesaid submissions by arguing that
fairness in action was the hallmark of any administrative power and
D while exercising the power as a Master of Roster in allocating a Bench
to hear particular kind of cases, the Chief Justice performs his function
in an administrative capacity. He also submitted that applicability of the
principle of bias is to be judged by applying the test of reasonable
apprehension of bias in the mind of a party, as held in the case of Ranjit
Thakur v. Union of India and Others3. It was emphasised that the
E Constitution of India has created an independent judiciary which is vested
with the power of judicial review to determine the legality of administrative
actions and, thus, it becomes the solemn duty of the judiciary to keep the
organs of the State within the limits of the power conferred by the
Constitution by exercising the power of judicial review which is the
F sentinel on the qui vive. When such an important task is assigned to the
judiciary, power of listing the cases has to be exercised in a fair and
transparent manner so as to instill confidence in the public at large that
the matter shall be decided by the Court (or for that matter, by a particular
Bench) strictly on legal principles to ensure that Rule of Law, which is a
part of the basic structure of the Constitution, prevails. In this context, it
G was argued that the power to allocate the cases should not be with one
individual and this could be taken care of by applying the principle laid
down in the Second Judges’ case wherein, while laying down the
foundation of the Collegium system for the appointment of Judges, it
was held:
3(
H 1987) 4 SCC 611
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 983
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

“427. It is, therefore, realistic that there has to be room for A
discretionary authority within the operation of the rule of law, even
though it has to be reduced to the minimum extent necessary for
proper governance; and within the area of discretionary authority,
the existence of proper guidelines or norms of general application
excludes any arbitrary exercise of discretionary authority. In such
B
a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines or norms,
further reduces the area of discretion; but to that extent
discretionary authority has to be given to make the system
workable. A further check in that limited sphere is provided by
the conferment of the discretionary authority not to one individual C
but to a body of men, requiring the final decision to be taken after
full interaction and effective consultation between themselves, to
ensure projection of all likely points of view and procuring the
element of plurality in the final decision with the benefit of the
collective wisdom of all those involved in the process. The
D
conferment of this discretionary authority in the highest
functionaries is a further check in the same direction. The
constitutional scheme excludes the scope of absolute power in
any one individual. Such a construction of the provisions also,
therefore, matches the constitutional scheme and the
constitutional purpose for which these provisions were enacted. E
xx xx xx
450. It is obvious, that the provision for consultation with the
Chief Justice of India and, in the case of the High Courts, with the
Chief Justice of the High Court, was introduced because of the
realisation that the Chief Justice is best equipped to know and F
assess the worth of the candidate, and his suitability for
appointment as a superior Judge; and it was also necessary to
eliminate political influence even at the stage of the initial
appointment of a Judge, since the provisions for securing his
independence after appointment were alone not sufficient for an G
independent judiciary. At the same time, the phraseology used
indicated that giving absolute discretion or the power of veto to
the Chief Justice of India as an individual in the matter of
appointments was not considered desirable, so that there should
remain some power with the executive to be exercised as a check,
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984 SUPREME COURT REPORTS [2018] 12 S.C.R.

A whenever necessary. The indication is, that in the choice of a
candidate suitable for appointment, the opinion of the Chief
Justice of India should have the greatest weight; the selection
should be made as a result of a participatory consultative process
in which the executive should have power to act as a mere check
on the exercise of power by the Chief Justice of India, to achieve
B
the constitutional purpose. Thus, the executive element in the
appointment process is reduced to the minimum and any political
influence is eliminated. It was for this reason that the word
‘consultation’ instead of ‘concurrence’ was used, but that was
done merely to indicate that absolute discretion was not given to
C anyone, not even to the Chief Justice of India as an individual,
much less to the executive, which earlier had absolute discretion
under the Government of India Acts.
xx xx xx
466. It has to be borne in mind that the principle of
D non-arbitrariness which is an essential attribute of the rule of law
is all pervasive throughout the Constitution; and an adjunct of this
principle is the absence of absolute power in one individual in any
sphere of constitutional activity. The possibility of intrusion of
arbitrariness has to be kept in view, and eschewed, in
E constitutional interpretation and, therefore, the meaning of the
opinion of the Chief Justice of India, in the context of primacy,
must be ascertained. A homogenous mixture, which accords with
the constitutional purpose and its ethos, indicates that it is the
opinion of the judiciary ‘symbolised by the view of the Chief
Justice of India’ which is given greater significance or primacy in
F the matter of appointments. In other words, the view of the Chief
Justice of India is to be expressed in the consultative process as
truly reflective of the opinion of the judiciary, which means that it
must necessarily have the element of plurality in its formation. In
actual practice, this is how the Chief Justice of India does, and is
G expected to function so that the final opinion expressed by him is
not merely his individual opinion, but the collective opinion formed
after taking into account the views of some other Judges who are
traditionally associated with this function.
xx xx xx
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REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

468. The rule of law envisages the area of discretion to be the A
minimum, requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks
B
against arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable in a
satisfactory manner. Entrustment of the task of appointment of
superior judges to high constitutional functionaries; the greatest
significance attached to the view of the Chief Justice of India,
who is best equipped to assess the true worth of the candidates C
for adjudging their suitability; the opinion of the Chief Justice of
India being the collective opinion formed after taking into account
the views of some of his colleagues; and the executive being
permitted to prevent an appointment considered to be unsuitable,
for strong reasons disclosed to the Chief Justice of India, provide
D
the best method, in the constitutional scheme, to achieve the
constitutional purpose without conferring absolute discretion or
veto upon either the judiciary or the executive, much less in any
individual, be he the Chief Justice of India or the Prime Minister.
xx xx xx
E
480. The primacy of the judiciary in the matter of appointments
and its determinative nature in transfers introduces the judicial
element in the process, and is itself a sufficient justification for
the absence of the need for further judicial review of those
decisions, which is ordinarily needed as a check against possible
executive excess or arbitrariness. Plurality of judges in the F
formation of the opinion of the Chief Justice of India, as indicated,
is another inbuilt check against the likelihood of arbitrariness or
bias, even subconsciously, of any individual. The judicial element
being predominant in the case of appointments, and decisive in
transfers, as indicated, the need for further judicial review, as in G
other executive actions, is eliminated. The reduction of the area
of discretion to the minimum, the element of plurality of judges in
formation of the opinion of the Chief Justice of India, effective
consultation in writing, and prevailing norms to regulate the area
of discretion are sufficient checks against arbitrariness.”
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986 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 7. Mr. Dave also referred to the following observations of
Justice J.S. Verma (as His Lordship then was) in that very judgment:
“478. This opinion has to be formed in a pragmatic manner and
past practice based on convention is a safe guide. In matters
relating to appointments in the Supreme Court, the opinion given
B by the Chief Justice of India in the consultative process has to be
formed taking into account the views of the two seniormost Judges
of the Supreme Court. The Chief Justice of India is also expected
to ascertain the views of the senior-most Judge of the Supreme
Court whose opinion is likely to be significant in adjudging the
suitability of the candidate, by reason of the fact that he has come
C from the same High Court, or otherwise. Article 124(2) is an
indication that ascertainment of the views of some other Judges
of the Supreme Court is requisite. The object underlying Article
124(2) is achieved in this manner as the Chief Justice of India
consults them for the formation of his opinion. This provision in
D Article 124(2) is the basis for the existing convention which
requires the Chief Justice of India to consult some Judges of the
Supreme Court before making his recommendation. This ensures
that the opinion of the Chief Justice of India is not merely his
individual opinion, but an opinion formed collectively by a body of
men at the apex level in the judiciary...”
E 8. Learned senior counsel also relied upon paragraph 44 of the
judgment in Special Reference No. 1 of 19984 (popularly known as
the “Third Judges’ case”) wherein the Court answered the questions
under Reference by clarifying as follows:
“44. The questions posted by the Reference are now answered,
F but we should emphasise that the answers should be read in
conjunction with the body of this opinion:
xx xx xx
3. The Chief Justice of India must make a recommendation to
appoint a Judge of the Supreme Court and to transfer a Chief
G Justice or puisne Judge of a High Court in consultation with the
four seniormost puisne Judges of the Supreme Court. Insofar as
an appointment to the High Court is concerned, the
recommendation must be made in consultation with the two
seniormost puisne Judges of the Supreme Court.
4
H (1998) 7 SCC 739
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 987
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

4. The Chief Justice of India is not entitled to act solely in his A
individual capacity, without consultation with other Judges of the
Supreme Court, in respect of materials and information conveyed
by the Government of India for non-appointment of a Judge
recommended for appointment.”
9. Towing the aforesaid line, Mr. Dave proceeded to argue that B
the modern trend in all robust legal systems governed by democratic
principles was to ensure that even administrative powers of the Chief
Justice must be shared with other senior Judges so that the power is
exercised properly and validly. In support, the learned senior counsel
referred to the system that prevails in the United Kingdom Supreme
Court, High Court of Australia (which is the apex court of that country), C
Supreme Court of Canada, German Federal Court and even European
Court of Human Rights and European Court of Justice.
10. Mr. Venugopal, learned Attorney General, in reply to the
aforesaid arguments of the petitioner, submitted that the petitioner has
virtually accepted the legal position to the effect that the Chief Justice is D
the ‘Master of Roster’ and in that capacity he also has the authority to
allocate the cases to different Benches/Judges of the Supreme Court.
Therefore, the grievance, essentially, of the petitioner was about the
manner in which such a power is being exercised. However, at the
same time, the petitioner had also made it clear that he was not questioning E
particular decisions rendered by particular Benches which were assigned
some of the important matters, pointed out the learned Attorney General.
He submitted that the substance of the argument of the learned senior
counsel for the petitioner was that in order to ensure that the cases are
assigned in a fair and transparent manner, the term ‘Chief Justice’ should
be interpreted to mean ‘Collegium’ of five senior most judges including F
the ‘Chief Justice’. Response of the learned Attorney General was
that though such a mechanism, as a solution, was found out by this Court
in the judgments popularly known as Three Judges’ case(s) for
appointment of Judges in the High Court as well as in the Supreme
Court, suggestion was totally impractical when it comes to discharge of G
administrative duties by the ‘Chief Justice’ in his capacity as the Master
of Roster. Strongly refuting this suggestion, he argued that such an
interpretation was not only impractical, it would even result in a chaos if
day to day administrative work, including the task of constituting the
Benches and allocating cases to the Benches, is allowed to be undertaken
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988 SUPREME COURT REPORTS [2018] 12 S.C.R.

A by the ‘Collegium’. His submission was that such matters of constituting
the Benches and allocating cases to the respective Benches has to be
left to the sole discretion of the ‘Chief Justice’ acting in his individual
capacity, for the smooth functioning of the Court, by reposing faith and
trust in the ‘Chief Justice’ who occupies the highest constitutional position
in the judiciary.
B
11. We have bestowed serious consideration to the submissions
made by the counsel on either sides. It may also be clarified at the
outset that this matter has not been treated as adversarial in nature.
This Court would also like to place on record that it does not dispute the
bona fides of the person like the petitioner, who enjoys considerable
C respectability, in filing this petition. This Court has considered the entire
matter objectively and with great sense of responsibility. At the same
time, it also becomes our duty to decide the matter in accord with the
legal position that is contained in the Constitution and the Statutes and
the legal principles engrafted in the precedents of this Court having binding
D effect.
ROLE OF THE ‘CHIEF JUSTICE’ AS THE MASTER OF
ROSTER
12. There is no dispute, as mentioned above, that ‘Chief Justice’
is the Maser of Roster and has the authority to allocate the cases to
E different Benches/Judges of the Supreme Court. The petitioner has been
candid in conceding to this legal position. He himself has gone to the
extent of stating in the petition that this principle that ‘Chief Justice’ is
the Maser of Roster is essential to maintain judicial discipline and decorum
and also for the proper and efficient functioning of the Court.
F Notwithstanding this concession, it would be imperative to explain this
legal position with little elaborations, also by referring to some of the
judgments of this Court which spell out the scope and ambit of such a
power.
13. The petitioner has himself, in the petition, referred to a three-
G Judge Bench in State of Rajasthan v. Prakash Chand & Ors.5 held
that the Chief Justice of the High Court is the Maser of Roster and he
alone has the prerogative to constitute the Benches of the Court and
allocate cases to the Benches so constituted. The Court stated thus:
5
(1998) 1 SCC 1
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 989
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

“59. From the preceding discussion the following broad A
conclusions emerge. This, of course, is not to be treated as a
summary of our judgment and the conclusions should be read
with the text of the judgment:
(1) That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the B
first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone
has the prerogative to constitute benches of the court and
allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to C
them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no
Judge who is to sit singly can sit in a Division Bench and no
Division Bench can be split up by the Judges constituting the bench
themselves and one or both the Judges constituting such bench sit D
singly and take up any other kind of judicial business not
otherwise assigned to them by or under the directions of the Chief
Justice.
(5) That the Chief Justice can take cognizance of an application
laid before him under Rule 55 (supra) and refer a case to the E
larger bench for its disposal and he can exercise this jurisdiction
even in relation to a part-heard case.
(6) That the puisne Judges cannot “pick and choose” any case
pending in the High Court and assign the same to himself or
themselves for disposal without appropriate orders of the F
Chief Justice.
(7) That no Judge or Judges can give directions to the Registry
for listing any case before him or them which runs counter to the
directions given by the Chief Justice.”
14. The same principle in Prakash Chand’s case was applied as G
regards the power of the ‘Chief Justice’ and in the matter of Campaign
for Judicial Accountability and Reforms v. Union of India & Anr.6
five Judge Bench held:
6
(2018) 1 SCC 196
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990 SUPREME COURT REPORTS [2018] 12 S.C.R.

A “6. There can be no doubt that the Chief Justice of India is the
first amongst the equals, but definitely, he exercises certain
administrative powers and that is why in Prakash Chand [State
of Rajasthan v. Prakash Chand, (1998) 1 SCC 1] , it has been
clearly stated that the administrative control of the High Court
vests in the Chief Justice alone. The same principle must apply
B
proprio vigore as regards the power of the Chief Justice of India.
On the judicial side, he is only the first amongst the equals. But, as
far as the Roster is concerned, as has been stated by the
three-Judge Bench in Prakash Chand [State of Rajasthan v.
Prakash Chand, (1998) 1 SCC 1], the Chief Justice is the
C Master of the Roster and he alone has the prerogative to
constitute the Benches of the Court and allocate cases to the
Benches so constituted.”
Further, the Constitution Bench held:
“7. The aforesaid position though stated as regards the High Court,
D we are absolutely certain that the said principle is applicable to
the Supreme Court. We are disposed to think so. Unless such a
position is clearly stated, there will be utter confusion. Be it noted,
this has been also the convention of this Court, and the
convention has been so because of the law. We have to make it
E clear without any kind of hesitation that the convention is
followed because of the principles of law and because of judicial
discipline and decorum. Once the Chief Justice is stated to be the
Master of the Roster, he alone has the prerogative to constitute
Benches. Needless to say, neither a two-Judge Bench nor a
three-Judge Bench can allocate the matter to themselves or
F 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
G permissible.
8. An institution has to function within certain parameters and
that is why there are precedents, rules and conventions. As far as
the composition of Benches is concerned, we accept the
principles stated in Prakash Chand [State of Rajasthan v.
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 991
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

Prakash Chand, (1998) 1 SCC 1] , which were stated in the A
context of the High Court, and clearly state that the same shall
squarely apply to the Supreme Court and there cannot be any
kind of command or order directing the Chief Justice of India to
constitute a particular Bench.”
15. There is a reiteration of this very legal position by another B
three Judge Bench judgment of this Court in Asok Pande v. Supreme
Court of India through its Registrar and Ors.7
WHETHER THE EXPRESSION ‘CHIEF JUSTICE’ IN THE
SUPREME COURT RULES IS TO BE READ AS
‘COLLEGIUM’ OF FIRST FIVE JUDGES? C
16. In this aforesaid backdrop, we have to consider the principal
submission of the petitioner viz. whether the expression ‘Chief Justice’
in the Supreme Court Rules is to be read as ‘Collegium’ of first five
Judges? As a corollary, whether power of constituting the Benches and
listing the cases be exercised by the Collegium and not the Chief Justice D
alone? That is the entire edifice on which the petitioner’s case is built
upon. To begin with, we may remark that Asok Pande covers this
issue as well. That judgment was rendered in a writ petition filed by the
petitioner under Article 32 of the Constitution wherein he had raised
number of grievances. Apart from some personal grievances raised in
the said writ petition pertaining to some proceedings in the Allahabad E
High Court, relief which he had sought was for issuance of writ of
mandamus to the first respondent (Supreme Court of India) to evolve
the set of procedure for constituting the Benches and allotment of
jurisdiction to different Benches of the Supreme Court. In this behalf,
he wanted that there should be a specific rule in the Rules to the effect F
that the three Judge Bench in the Chief Justice’s Court should consist of
the Chief Justice and two senior-most Judges and also that Rules be
made to the effect that the Constitution Bench shall consist of five
senior-most Judges or three senior most Judges and two junior-most
Judges. Similar mandamus was prayed for in respect of the Allahabad
High Court to evolve identical set of Rules with respect to formation of G
Benches.
17. While negating the aforesaid relief claimed by the said
petitioner, the Court took note of the provisions of Article 145 of the

7
Writ Petition (Civil) No. 147 of 2018 decided on April 11, 2018 H
992 SUPREME COURT REPORTS [2018] 12 S.C.R.

A Constitution which empowers the Supreme Court to make Rules for
regulating generally the practice and procedure of the Court, including
the matters specifically mentioned in clause (I) of Article 145 of the
Constitution, which Rules are to be made with the approval of the
President of India. The Court also referred to Order VI of the Rules.
This order deals with the constitution of division courts and powers of a
B
Single Judge. Rule 1 thereof provides that it is the Chief Justice who is
to nominate the Judges who would constitute a Bench to hear a case,
appeal or matter. Where a reference is made to a larger Bench, the
Bench making the reference is required to refer the matter to the Chief
Justice who will constitute the Bench. Rule 1, thus, empowers the Chief
C Justice to constitute a Division Bench as well as a larger Bench. In case
where the reference is made by a Bench to a larger Bench, again, which
Judges will constitute the said Bench is left to the discretion of the Chief
Justice. It nowhere says that the members of the Bench making reference
are to be the members of the larger Bench as well. Likewise, Order
XXXVIII of the Rules deals with applications for enforcement of
D
fundamental rights under Article 32 of the Constitution. Rule 1 thereof
mentions the manner in which a petition under Article 32 of the Constitution
is to be dealt with. Likewise, Rule 12 deals with public interest litigation.
18. After incorporating the aforesaid provisions, the Court referred
to the three Judge Bench judgment in the case of State of Rajasthan v.
E Prakash Chand and Others8 as well as the Constitution Bench judgment
in Campaign for Judicial Accountability and Reforms’s case, the
relevant discussion in respect of which has already been elucidated above.
On that basis, the relief claimed by the said writ petitioner was termed
as ‘manifestly misconceived’ and the discussion that ensued in this behalf
F reads as under:
“11. In view of this binding elucidation of the authority of the
Chief Justice of India, the relief which the petitioner seeks is
manifestly misconceived. For one thing, it is a well settled
principle that no mandamus can issue to direct a body or authority
G which is vested with a rule making power to make rules or to
make them in a particular manner. The Supreme Court has been
authorised under Article 145 to frame rules of procedure. A
mandamus of the nature sought cannot be issued. Similarly, the
petitioner is not entitled to seek a direction that Benches of this
8
(1998) 1 SCC 1
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 993
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

Court should be constituted in a particular manner or, as he seeks, A
that there should be separate divisions of this Court. The former
lies exclusively in the domain of the prerogative powers of the
Chief Justice.
12. Quite apart from the fact that the relief sought is contrary to
legal and constitutional principle, there is a fundamental fallacy in B
the approach of the petitioner, which must be set at rest. The
petitioner seeks the establishment of a binding precept under which
a three judge Bench in the Court of the Chief Justice must consist
of the Chief Justice and his two senior-most colleagues alone
while the Constitution Bench should consist of five senior-most
judges (or, as he suggests, three ‘senior-most’ and two C
‘junior-most’ judges). There is no constitutional foundation on the
basis of which such a suggestion can be accepted. For one thing,
as we have noticed earlier, this would intrude into the exclusive
duty and authority of the Chief Justice to constitute benches and
to allocate cases to them. Moreover, the petitioner seems to D
harbour a misconception that certain categories of cases or
certain courts must consist only of the senior-most in terms of
appointment. Every Judge appointed to this Court under Article
124 of the Constitution is invested with the equal duty of
adjudicating cases which come to the Court and are assigned by
the Chief Justice. Seniority in terms of appointment has no E
bearing on which cases a Judge should hear. It is a settled
position that a judgment delivered by a Judge speaks for the court
(except in the case of a concurring or dissenting opinion). The
Constitution makes a stipulation in Article 124(3) for the
appointment of Judges of the Supreme Court from the High Courts, F
from the Bar and from amongst distinguished jurists.
Appointment to the Supreme Court is conditioned upon the
fulfilment of the qualifications prescribed for the holding of that
office under Article 124(3). Once appointed, every Judge of the
Court is entitled to and in fact, duty bound, to hear such cases as
are assigned by the Chief Justice. Judges drawn from the High G
Courts are appointed to this Court after long years of service.
Members of the Bar who are elevated to this Court similarly are
possessed of wide and diverse experience gathered during the

H
994 SUPREME COURT REPORTS [2018] 12 S.C.R.

A course of the years of practise at the Bar. To suggest that any
Judge would be more capable of deciding particular cases or that
certain categories of cases should be assigned only to the senior-
most among the Judges of the Supreme Court has no foundation
in principle or precedent. To hold otherwise would be to cast a
reflection on the competence and ability of other judges to deal
B
with all cases assigned by the Chief Justice notwithstanding the
fact that they have fulfilled the qualifications mandated by the
Constitution for appointment to the office.”
(emphasis added)
C 19. On the aforesaid analogy, the Court also rejected the prayer
of the said petitioner in regard to the constitution of Benches in the High
Courts as well. Some of the discussion in this behalf, which may be
relevant for our purposes as well, is reproduced below:
“14...The High Courts periodically publish a roster of work under
D the authority of the Chief Justice. The roster indicates the
constitution of Benches, Division and Single. The roster will
indicate the subject matter of the cases assigned to each bench.
Different High Courts have their own traditions in regard to the
period for which the published roster will continue, until a fresh
roster is notified. Individual judges have their own strengths in
E terms of specialisation. The Chief Justice of the High Court has
to bear in mind the area of specialisation of each judge, while
deciding upon the allocation of work. However, specialisation is
one of several aspects which weigh with the Chief Justice. A
newly appointed judge may be rotated in a variety of assignments
F to enable the judge to acquire expertise in diverse branches of
law. Together with the need for specialisation, there is a need for
judges to have a broad-based understanding of diverse areas of
law. In deciding upon the allocation of work and the constitution
of benches, Chief Justices have to determine the number of
benches which need to be assigned to a particular subject matter
G keeping in view the inflow of work and arrears. The Chief Justice
of the High Court will have regard to factors such as the
pendency of cases in a given area, the need to dispose of the
oldest cases, prioritising criminal cases where the liberty of the
subject is involved and the overall strength, in terms of numbers,
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 995
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

of the court. Different High Courts have assigned priorities to A
certain categories of cases such as those involving senior
citizens, convicts who are in jail and women litigants. These
priorities are considered while preparing the roster. Impending
retirements have to be borne in mind since the assignment given
to a judge who is due to demit office would have to be entrusted
B
to another Bench when the vacancy arises. These are some of
the considerations which are borne in mind. The Chief Justice is
guided by the need to ensure the orderly functioning of the court
and the expeditious disposal of cases. The publication of the
roster on the websites of the High Courts provides notice to
litigants and lawyers about the distribution of judicial work under C
the authority of the Chief Justice. This Court was constituted in
1950. In the preparation of the roster and in the distribution of
judicial work, some of the conventions which are adopted in the
High Courts are also relevant, subject to modifications having
regard to institutional requirements.”
D
20. The aforesaid judgment of the three Judges’ Bench is a binding
precedent. This judgment, in no uncertain terms, holds that the ‘Chief
Justice’ in his individual capacity is the Master of Roster and it cannot
read as Collegium of first three or five Judges. Thus, it is his prerogative
to constitute the Benches and allocate the subjects which would be dealt
with by the respective Benches. E

21. The Constitution is silent on the role of the ‘Chief Justice’9.
There is no specific provision relating thereto either in the Constitution
or even in any other law. The legal position contained in the aforesaid
judgments is based upon healthy practice and sound conventions which
have been developed over a period of time and that stands engrafted in F
the Supreme Court Rules. In fact, it is dominated by two stereo-types.
One, perpetuated by the common belief and widely endorsed and
accepted by all the stakeholders, is that the ‘Chief Justice’ occupies the
role of ‘first among equals’. The phrase ‘among equals’ is generally
relatable to the judicial function designed to emphasise the fact that voices G
of the members of a particular Bench, which may include ‘Chief
Justice’, are given equal weight and that in deciding cases, the opinion
of the ‘Chief Justice’ also carries same weight and is no different from
those of other Members of the Bench. Thus, in a given case, there is a
9
Article 124 of the Constitution merely says that there shall be a Supreme Court of
India consisting of Chief Justice of India and thirty other Judges.
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996 SUPREME COURT REPORTS [2018] 12 S.C.R.

A possibility that the view of the ‘Chief Justice’ may be a minority view
and in that eventuality, the outcome of case would be what majority
decides. The word ‘first’ in the aforesaid expression signifies only the
fact that the ‘Chief Justice’ is the senior most Judge of the Court.
22. The second stereotype is that being the ‘Chief Justice’ and
B senior most Judge of the Court, he is empowered to exercise ‘leadership’
on the Court. In this role, the ‘Chief Justice’ is expected to be the
spokesperson and representative of the judiciary in its dealings with the
Executive, Government and the Community. For this purpose, the ‘Chief
Justice’ has a general responsibility to ensure that the Court promotes
change and reform as appropriate. The judicial reforms, which is a
C continuing process in order to ensure that there is real access to justice,
also becomes the moral responsibility of the ‘Chief Justice’. Such
reforms in the administration of justice are not limited to the judicial
aspects (i.e. how the cases need to be decided, case management and
court management, speedy disposal etc.) but also include reforms on the
D administrative side of the legal system as well. Procedural reforms and
implementation thereof is an integral part of the judicial reform. The
ultimate purpose is to dispense justice, which is the highest and noblest
virtue. Again, in this role, the ‘Chief Justice’ gets the authority and
responsibility for the administration of the Court, which gives him the
ultimate authority for determining the distribution of judicial work load.
E In Indian context, this power was given statutory recognition by Section
214(3) of the Government of India Act, 1935 which reads as under:
“(2) Rules made under this section may fix the minimum number
of judges who are to sit for any purpose, so however that no case
shall be decided by less than three judges:
F
Provided that, if the Federal Legislature makes such provision as
is mentioned in this chapter for enlarging the appellate jurisdiction
of the court, the rules shall provide for the constitution of a special
division of the court for the purpose of deciding all cases which
would have been within the jurisdiction of the court even if its
G jurisdiction had not been so enlarged.
(3) Subject to the provisions of any rules of court, the Chief
Justice of India shall determine what judges are to constitute any
division of the court and what judges are to sit for any purpose.”

H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 997
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

23. Under the Constitution, the Supreme Court is given the authority A
to frame Rules for regulating generally the practice and procedure of
the Court, including various subjects as enumerated in sub-Article (1) of
Article 145. Supreme Court Rules, 2013 which have been framed in
exercise of such a power empowered the Chief Justice to constitute the
Benches and list particular matters before such Benches. Similar powers
B
are conferred upon the Chief Justice of the High Courts in the Rules
framed by respective High Courts for regulating its procedure.
24. At the same time, the power of the ‘Chief Justice’ does not
extend to regulate the functioning of a particular Bench to decide cases
assigned to him once the cases are allocated to that Bench. A Bench
comprising of puisne Judges exercise its judicial function without C
interference from others, including the ‘Chief Justice’, as it is supposed
to act according to law. Therefore, when a particular matter is assigned
to a particular Bench, that Bench acquires the complete dominion over
the case.
25. From the aforesaid, it follows that the two most obvious D
functions of the ‘Chief Justice’ are to exercise judicial power as a Judge
of the Court on equal footing as others, being ‘among equals’ and to
assume responsibility of the administration of the Court.
26. Keeping in mind these postulates and the ratio of the aforesaid
binding judgments, it is difficult to accept the argument of the petitioner E
that the expression ‘Chief Justice’ is to be read as ‘Collegium’ consisting
of five senior-most Judges, including the Chief Justice. The judgments
cited by learned senior counsel appearing for the petitioner are in the
context of Article 124 of the Constitution wherein the expression ‘Chief
Justice’ was read as Collegium, after examining the Constitutional F
Scheme and the objective behind such a provision meant for appointment
of Judges. The rationale provided in that context cannot be adopted
while interpreting Article 145 of the Constitution, the purpose whereof is
altogether different. We agree with the submission of the learned
Attorney General that the task of constitution of Benches and allocation
of specific cases to those Benches, can more smoothly be performed by G
the Chief Justice and discharge of such a function by the Collegium
would be unworkable and also lead to many practical difficulties.
27. As already taken note of above, the basis of this argument is
the judgment of this Court in Second Judges’ case which laid the
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998 SUPREME COURT REPORTS [2018] 12 S.C.R.

A foundation of the Collegium system for the appointment of Judges. The
relevant passages from the said judgment, which are relied upon by the
learned senior counsel for the petitioner, have already been extracted
above. The Court accepted that there has to be room for discretionary
authority within the operation of rule of law. At the same time, it was
emphasised that such a discretion should be reduced to minimum extent
B
necessary for proper governance, which can be achieved with the
existence of proper guidelines or norms of general application. In this
hue, the Court deemed it proper that conferment of the discretionary
authority should not be with one individual but to a body of men and,
thus, evolved the system of Collegium whereby the Chief Justice will
C have benefit of full interaction and effective consultation with other senior
Judges, to ensure projection of all likely points and procuring the element
of plurality in the final decision with the benefit of collective wisdom of
all those involved in the process. However, it needs to be emphasised
that the aforesaid resolution and concept of Collegium was innovated by
judicial interpretation in the context of appointment of Judges in the
D
constitutional Courts, i.e. the Supreme Court as well as the High Courts.
It is also to be borne in mind that as far as the Executive is concerned, it
will have virtually no role in such appointments, except the minimalist
role specifically delineated in the judgment. This kind of system which
is devised for appointment of Judges cannot be replicated when it comes
E to the role of the Chief Justice as Master of Roster. We have to keep in
mind that the Chief Justice, as the head of the Supreme Court of India,
and the Chief Justices of the High Courts, have to perform many other
functions, on administrative side, in their capacities as Chief Justices.
Framing of the Roster and constituting the Benches is one among them.
In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’,
F
it would be difficult to have smooth day to day functioning of the Supreme
Court, or for that matter the High Courts. We have already reproduced
above that part of the discussion from the judgment in Asok Pande
which took note of various factors that are to be kept in mind for preparing
the Roster and indicating the constitution of Benches. Moreover, when
G it comes to assigning the cases to a particular Bench, it has to be
undertaken by the Chief Justice on daily basis in contrast with the meetings
of the Collegium for the purpose of appointment of Judges, which is
infrequent. Thus, meeting of Collegium for the purpose of assigning the
cases to a particular Bench on daily basis is clearly impracticable.
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 999
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

28. It is trite that ratio of a judgment is what it decides and not A
what logically follows therefrom. The observations in the three Judges’
case(s) are to be read in the context in which they are rendered. Once
that is kept in mind, we arrive at a conclusion that the ratio of those
judgments cannot be extended to read the expression ‘Chief Justice’,
wherever it occurs, to mean the ‘Collegium’ of the senior Judges.
B
29. The argument of the learned counsel for the petitioner that
function such as ‘framing the Roster’ and ‘listing of important and
sensitive matters’ are extremely crucial and cannot be left to the sole
discretion of the Chief Justice is also met in Asok Pande, in the following
manner:
“15. Underlying the submission that the constitution of Benches C
and the allocation of cases by the Chief Justice must be regulated
by a procedure cast in iron is the apprehension that absent such a
procedure the power will be exercised arbitrarily. In his capacity
as a Judge, the Chief Justice is primus inter pares: the first among
equals. In the discharge of his other functions, the Chief Justice D
of India occupies a position which is sui generis. Article 124(1)
postulates that the Supreme Court of India shall consist of a Chief
Justice of India and other Judges. Article 146 reaffirms the
position of the Chief Justice of India as the head of the institution.
From an institutional perspective the Chief Justice is placed at the
helm of the Supreme Court. In the allocation of cases and the E
constitution of benches the Chief Justice has an exclusive
prerogative. As a repository of constitutional trust, the Chief
Justice is an institution in himself. The authority which is con-
ferred upon the Chief Justice, it must be remembered, is vested in
a high constitutional functionary. The authority is entrusted to the F
Chief Justice because such an entrustment of functions is
necessary for the efficient transaction of the administrative and
judicial work of the Court. The ultimate purpose behind the
entrustment of authority to the Chief Justice is to ensure that the
Supreme Court is able to fulfil and discharge the constitutional
obligations which govern and provide the rationale for its G
existence. The entrustment of functions to the Chief Justice as
the head of the institution, is with the purpose of securing the
position of the Supreme Court as an independent safeguard for
the preservation of personal liberty. There cannot be a
presumption of mistrust. The oath of office demands nothing less.” H
1000 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 30. In this entire scheme, it needs to be highlighted that the judiciary
is assigned a pivotal role under the Constitution. In a Constitution Bench
judgment rendered only a day before10 in the case of Government of
NCT of Delhi v. Union of India & Another, the role of the Court as
final arbiter of the Constitution and upholder of the rule of law is captured
in the following words:
B
“4. This Court, being the final arbiter of the Constitution, in such
a situation, has to enter into the process of interpretation with the
new tools such as constitutional pragmatism having due regard
for sanctity of objectivity, realization of the purpose in the truest
sense by constantly reminding one and all about the sacrosanctity
C of democratic structure as envisaged by our Constitution,
elevation of the precepts of constitutional trust and morality, and
the solemn idea of decentralization of power and, we must say,
the ideas knock at the door to be invited. The compulsive
invitation is the warrant to sustain the values of democracy in the
D prescribed framework of law. The aim is to see that in the
ultimate eventuate, the rule of law prevails and the interpretative
process allows the said idea its deserved space, for when the rule
of law is conferred its due status in the sphere of democracy, it
assumes significant credibility.
E 5. We would like to call such a method of understanding
“confluence of the idea and spirit of the Constitution”, for it celebrates
the grand idea behind the constitutional structure founded on the
cherished values of democracy.”
31 The Constitution makers, thus, reposed great trust in the
F judiciary by assigning it the powers of judicial review of not only the
administrative acts of the Government/Executive but even the
legislative acts of the Legislature. In the process, judiciary discharges
one of the most important functions, namely, the administration of
justice. It does so by upholding the rule of law and, in the process,
protecting the Constitution and the democracy. Our Constitution
G guarantees free speech, fair trials, personal freedom, personal privacy,
equal treatment under the law, human dignity and liberal democratic
values. This bundle of non-negotiable rights and freedoms has to be
protected by the judiciary. For this reason, independence of judiciary is
10
Judgment dated July 4, 2018 in Civil Appeal No. 2357 of 2017 titled Government of
H NCT of Delhi v. Union of India & Another with other connected appeals.
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1001
REGISTRAR AND ANOTHER [A.K. SIKRI, J.]

treated as one of the basic features of the Constitution. Here, we may A
point out four major aspects of judicial status or performance, which
are: independence; impartiality; fairness; and competence.
32. Alexander M. Bickel had emphasised way back in 196211 that
the judiciary is the least dangerous branch as it has neither the purse nor
the sword, by reproducing following words of wisdom of Alexander B
Hamilton12:
“Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions, will
always be the least dangerous to the political rights of the C
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but
holds the sword of the community. The legislature not only
commands the purse, but prescribes the rules by which the duties
and rights of every citizen are to be regulated. The judiciary, on
D
the contrary, has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society;
and can take no active resolution whatever. It may truly be said
to have neither FORCE nor WILL, but merely judgment; and
must ultimately depend upon the aid of the executive arm even
for the efficacy of its judgments.” E
33. The judiciary even without the sword or the purse, remains
the guardian of the Constitution. Its sole strength lies in the public
confidence and the trust. A.S. Anand, J. (as His Lordship then was,
later the Chief Justice of India) highlighted this aspect (though in the
context of contempt jurisdiction of the Court) in State of Rajasthan v. F
Prakash Chand & Ors.13 in the following words:
“The virtue of humility in the Judges and a constant awareness
that investment of power in them is meant for use in public
interest and to uphold the majesty of rule of law, would to a large
extent ensure self restraint in discharge of all judicial functions G
and preserve the independence of judiciary. It needs no emphasis
to say that all actions of a Judge must be judicious in character.
Erosion of credibility of the judiciary, in the public mind,
11
in his book ‘The Least Dangerous Branch’
12
in the 78th Federalist, “The Judges as Guardians of the Constitution”.
13
(1998) 1 SCC 1 H
1002 SUPREME COURT REPORTS [2018] 12 S.C.R.

A for whatever reasons, is greatest threat to the
independence of the judiciary. Eternal vigilance by the Judges
to guard against any such latent internal danger is, therefore,
necessary, lest we “suffer from self-inflicted mortal wounds”.
We must remember that the Constitution does not give unlimited
powers to any one including the Judge of all levels. The societal
B
perception of Judges as being detached and impartial
referees is the greatest strength of the judiciary and every
member of the judiciary must ensure that this perception
does not receive a set back consciously or unconsciously.
Authenticity of the judicial process rests on public confidence and
C public confidence rests on legitimacy of judicial process. Sources
of legitimacy are in the impersonal application by the Judge of
recognised objective principles which owe their existence to a
system as distinguished from subjective moods, predilections,
emotions and prejudices.”
D 34. We may also quote the following passage from S.P. Gupta
(per Pathak, J.):
“While the administration of justice draws its legal sanction from
the Constitution, its credibility rests in the faith of the people.
Indispensable to that faith is the independence of the judiciary. An
E Independent and impartial judiciary supplies the reason for the
judicial institution, it also gives character and content to the
constitutional milieu.”
35. In the same decision, J.S. Verma, J. echoed the aforesaid
sentiments with the following message:
F “The role of the Judiciary under the Constitution is a pious trust
reposed by the people. The Constitution and the
democratic-polity thereunder shall not survive, the day Judiciary
fails to justify the said trust. If the Judiciary fails, the Constitution
fails and the people might opt for some other alternative.”
G 36. Thus, the faith of the people is the bed-rock on which the
edifice of judicial review and efficacy of the adjudication are founded.
Erosion of credibility of the judiciary, in the public mind, for whatever
reasons, is greatest threat to the independence of the judiciary. We live
in an age of accountability. What is required of Judges is changing.
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1003
REGISTRAR AND ANOTHER. [A.K. SIKRI, J.]

Judgments of the Courts are widely discussed, debated and even A
criticised. In this age of technology, open society and liberal democracy
coupled with varied nature of cases raising complex issues which are
decided by the Courts, including ‘hard cases’ any outcome whereof
may be susceptible to criticism, as both views may appear to be equally
strong. In that sense, judiciary walks the tightrope of independence. It
B
has also become a regular feature that even laymen, who are
constitutionally illiterate, enter such debate and evaluate the outcomes
influenced by their emotions, rather than on legal or constitutional
principles.
37. The world is changing fast. However, the fundamental qualities
which the public seek in a Judge have remained the same, as these are C
eternal verities, which will never change. These are wisdom, patience, a
sense of practical reality, fairness and balance, independence of mind
and knowledge of law, moral courage or fortitude, and a total commitment
that justice should be administered according to law. At the end of the
day, it is the virtue of righteousness, impartiality, objectivity and scholarship D
which a Judge commands to ensure respectability to his judgment.
38. In the aforesaid backdrop, role of the ‘Chief Justice’ as Master
of Roster also assumes much significance. Each ‘Chief Justice’
performs his role by consultation and consensus, after taking into account
various factors including individual Judges’ interests and abilities, their E
specialisation in a particular area, their capacity to handle particular type
of cases and many other relevant considerations. However, the exercise
of such a power with wisdom has to be left to the ‘Chief Justice’ who
is given the prerogative of the ‘Master of the Roster’.
39. Mr. Dave had referred to certain international practices, F
namely, the practices adopted by the Apex Courts in other jurisdictions.
We may only record that the judicial systems in different countries have
different styles of functioning and the practices have been developed in
various countries keeping in view the structure of the Courts14. Even
the procedural characteristics of litigation are different. Therefore, system
prevalent and developed in one jurisdiction cannot be mechanically adopted G
by judicial system in other countries. At the same time, there is no harm
in adopting those healthy practices which have been developed in foreign
jurisdictions and which can be easily adopted because of their universal
14
For example, in U.S., all Judge of the Supreme Court sit as a Court and not in
Benches. H
1004 SUPREME COURT REPORTS [2018] 12 S.C.R.

A application. After all, no system is full-proof. There is always a scope
for improvement. Reforms in the administration of justice, whether on
judicial side or administratively, is a continuing process. We all learn
from experiences and strive to do better.
40. Of course, it goes without saying that the matters need to be
B listed and assigned to the Benches in accordance with the Supreme
Court Rules, 2013 and Handbook of Practice and Procedure.
41. Having regard to the aforesaid principles laid down in the
binding precedents, it is difficult to accept the prayer of the petitioner
that the expression ‘Chief Justice’ appearing in the Supreme Court Rules,
C 2013 or in Article 145 of the Constitution be read as ‘Collegium’ of five
senior most Judges for the purpose of allocating the matters. At the
same time, we feel that debate generated as a result has served its
purpose. While saying so, we have in mind the following words of
Hon’ble Justice Tun Mohamed Dzaiddin Abdullah, the then Chief Justice
of Malaysia15:
D
“As judges, we are used to hearing, marshalling and evaluating
evidence.
In fact, when it comes down to brass tacks, that is just what we
judges are perennially obliged to do throughout the better part of
E our life on the Bench. Every decision we make is momentous,
for it touches the lives and fortunes of other people.
Thus it is good, therefore from time to time, like today, and the
next three days, for us to take a hard look at ourselves so as to
ensure that it is a responsibility which we are discharging.”
F 42. We conclude by extracting following message conveying deep
meaning, written in the ‘Introduction’ to the just released book authored
by eminent lawyer Fali S. Nariman16:
“Second: Institutions created by our Constitution, like the Supreme
Court, are, and will always remain, greater than the men and
G women for the time being in-charge. And this is why our Court
will always remain ‘Hon’ble’ as is the nine-judge Bench of the-

15
Taken from Welcoming Address given by him in a workshop on “judicial
accountability” organised by Commonwealth Lawyers’ Association in Kuala Lumpur
in April, 2002.
H 16
God Save the Hon’ble Supreme Court and Other Opinions.
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1005
REGISTRAR AND ANOTHER

more-than-two-hundred-year-old Supreme Court of the United A
States, which is reminded by the Clerk of the Court on each day
that it sits (proclaimed in a loud voice before the justices take
their seats): “God save the United States and this Hon’ble Court”,
and
Third: As for the men and women on the Bench for the time being B
in-charge, one can almost hear them say (as Edmund Burke had said in
an election speech way back in 1780):
“Applaud us when we run; console us when we fall; cheer us
when we recover; but let us pass on-for God’s sake, let us pass
on”. C
43. We, thus, dispose of the writ petition without any further
directions.

ASHOK BHUSHAN, J. 1. I have advantage of going through D
the draft judgment of my esteemed brother Justice A.K. Sikri. I entirely
agree with the opinion expressed by my brother, however, looking to the
importance of the issues raised in the writ petition I also express my
views on the subject.
2. The petitioner, a senior advocate of this Court and former Law
E
Minister has filed this writ petition under Article 32 of the Constitution
praying for following reliefs:-
“a) That this Hon’ble Court may be pleased to issue a writ of
declaration or a writ in the nature of declaration or any other
appropriate writ, order or direction holding and declaring
F
that listing of matters must strictly adhere to the Supreme Court
Rules, 2013 and Handbook on Practice and Procedure and
Office Procedure, subject to the following clarification:
i) The words ‘Chief Justice of India’ must be deemed to
mean a collegium of 5 senior judges of this Hon’ble Court.
G
b)That this Hon’ble Court may be pleased to issue a writ of
declaration or a writ in the nature of declaration or any other
appropriate writ, order or direction holding and declaring
that the consultation by the Registry, Officials for listing
purposes, if any with the Hon’ble Chief Justice of India must
H
1006 SUPREME COURT REPORTS [2018] 12 S.C.R.

A include consultation with such number of senior-most judges
as this Hon’ble Court may fix in the interest of justice,.
c) That this Hon’ble Court may be pleased to issue a writ of
prohibition or a writ in the nature of prohibition or any other
appropriate writ, order or direction prohibiting the Hon’ble
B Chief Justice of India and concerned respondents from listing
any matter contrary to the Supreme Court Rules, 2013 and
Handbook on Practice and Procedure and Office Procedure
or picking and choosing Benches for the purpose of listing
contrary thereto, with the above modification of replacing
‘Chief Justice of India’ with the collegium of 5 senior most
C judges of this Hon’ble Court.
d) That this Hon’ble Court may Clarify that when matters are
mentioned for urgent hearing/listing, only a date/time of
hearing would be fixed but the bench to hear the matter would
be determined in accordance with the Rules.
D e) That this Hon’ble Court may be pleased to grant such other
and further relief as may be deemed fit in the facts and
circumstances of the case and as may be required in the
interests of justice.”
3. The petitioner in the writ petition pleads that although the Chief
E Justice is the master of roster and has the authority to allocate cases to
different benches/judges of the Supreme Court, but however the power
to exercise such authority cannot be used in such a manner as to assert
any superior authority by the Chief Justice. In this respect, it is relevant
to reproduce the pleading of the petitioner in Paragraph 4 and Paragraph
6 of the writ petition, which is to the following effect:-
F
“4. It is a principle that has been settled by judicial
pronouncements and conventions of the Hon’ble Supreme
Court that the Chief Justice of India is the master of the roster
and has the authority to allocate cases to different benches/
judges of the Supreme Court. Adherence to this principle is
G essential to maintain judicial discipline and decorum and for
the proper and efficient functioning of the Court. However,
the power to exercise such authority cannot be used in such
a manner as to assert any superior authority by the Chief
Justice. It is also a well settled principle of jurisprudence
that the Chief Justice is only the first among equals.
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1007
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

6. A roster declares what work is assigned to High Court A
and Supreme Court Judges. ‘Master of the Roster’ refers to
the privilege of the Chief Justice to constitute Benches to hear
cases. It is a pre-requisite that this power must be exercised
in a manner is that fair, just and transparent and in keeping
with the high standards of integrity desired from the office of
B
a Chief Justice of India.”
4. The petitioner refers to a Three Judge Bench judgment in
State of Rajasthan Vs. Prakash Chand & Ors., (1998) 1 SCC 1,
wherein it was held that the Chief Justice of the High Court is the master
of the roster and he alone has the prerogative to constitute the benches
of the court and allocate cases to the benches so constituted. It is further C
pleaded in the writ petition that the writ petition raises questions relating
to the functioning of the Registry of the Supreme Court and the powers
exercised by the Chief Justice of India, inter-alia, in “listing matters” so
as to list matters of general public importance and/or of political sensitivity
before only certain Benches contrary to the Supreme Court Rules, D
Handbook of procedure and conventions. Petitioner, however, specifically
states in Paragraph 14 of the writ petition that “present petition does not
seek to question any judicial orders and/or judgments”. The petitioner
has made reference to certain cases, which according to petitioner reflects
and establishes gross abuse of powers. The petitioner in context of
above pleading has prayed in the writ petition that the word ‘Chief Justice E
of India’ must be deemed to mean a collegium of five senior judges of
this Hon’ble Court, the relief claimed in the writ petition as noted above,
is to the above effect.
5. Shri Dushyant Dave, learned senior counsel assisted by Shri
Prashant Bhushan, appearing for the petitioner submits that constitution F
of benches being a sensitive matter, it should not be allowed to or such
power should not be entrusted only to the Chief Justice but as this Court
has held while interpreting Article 124 that recommendation for
appointment of judges for the Supreme Court and the High Court should
be made by a collegium consisting of Chief Justice and four senior judges, G
the same interpretation or principle should be applied while finalizing the
roster. Formulation of roster should be entrusted to collegium consisting
of Chief Justice and four senior judges. Learned senior counsel submits
that the petitioner is not making any allegation and only endeavour is to
devise a system so that there be no handpicking of cases. This Court
H
1008 SUPREME COURT REPORTS [2018] 12 S.C.R.

A while interpreting Article 124 has relied on collective wisdom while making
recommendation for appointment of judges, the same interpretation should
be applied in exercise of power by Chief Justice while formulating the
roster. Alternatively, it is submitted that power to frame roster be given
to entire Court and the entire Court can decide the principles for finalizing
the roster. Learned senior counsel for the petitioner has also referred to
B
various international practices, which is adopted in different countries in
respect of allocation of cases to different benches.
6. Shri K.K. Venugopal, learned Attorney General opposing the
writ petition submits that under the Constitution and the Rules framed
thereunder, it is the Chief Justice, who is contemplated to take decision
C regarding allocation of cases and constitution of benches. It is submitted
by learned Attorney General that the exercise of allocation of cases and
framing of roster is an exercise, which cannot be taken by multiple
persons. He submits that there can be difference in members of collegium
regarding allocation of cases, which shall hamper the smooth functioning
D of the Court. He submits that exercise of roster is entirely different
from exercise of making recommendation for appointment of judges of
this Court. By participation of other judges, there is likelihood that conflict
of interest. Multiplicity of judges forming the roster will lead to chaos,
hampering the smooth functioning of the Court. Learned Attorney
General has referred to various judgments of this Court for the proposition
E that Chief Justice has been held to be master of roster and it is sole
prerogative of Chief Justice to constitute benches and allocate cases to
different benches for smooth functioning of the Court.
Shri Dushyant Dave replying the submission of learned Attorney
General submits that the objective of writ petition is to evolve a
F transparent and non-arbitrary system for allocation of cases and formation
of benches to allay any criticism of functioning of this Court. The object
of Writ Petition is not to make allegations against anyone or to question
any judgment of this Court; rather the entire endeavour is to improve the
judicial system to strengthen the independence of judiciary.
G 7. We have considered the submissions of the learned counsel for
the parties and have perused the records.
8. Before we consider the rival submissions raised by the learned
counsel for the parties, it is relevant to notice the relevant constitutional
provisions and the precedents on the subject. The Supreme Court of
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1009
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

India is successor of Federal Court, which was established in the British A
India by the Government of India Act, 1935. For the first time, the Chief
Justice of India was contemplated by Section 200 of the Government of
India Act, 1935. Prior to establishment of Federal Court, it was High
Courts in different States administering Justice. Against the decision of
the High Court, appeal was contemplated before the Judicial Committee
B
of the Privy Council. For the purposes of this case, it is not necessary to
trace the judicial history of Courts in this country.
9. Section 200(1) of the 1935 Act, which provided for
establishment and constitution of Federal Court was to the following
effect:-
C
“200.-(1) There shall be a Federal Court consisting of a Chief
Justice of India and such number of other judges as His
Majesty may deem necessary, but unless and until an address
has been presented by the Federal Legislature to the
Governor-General for submission to His Majesty praying for
an increase in the number of judges, the number of puisne D
judges shall not exceed six.”
10. Section 214 of the 1935 Act provided for rules of the Court
etc., which was as follows:
“214.-(1) The Federal Court may from time to court, with the E
approval of the Governor-General in his discretion, make
rules of court for regulating generally the practice and
procedure of the court, including rules as to the persons
practising before the court, as to the time within which appeals
to the court are to be entered, as to the costs of and incidental
to any proceedings in the court, and as to the fees to be F
charged in respect of proceedings therein, and in particular
may make rules providing for the summary determination of
any appeal which appears to the court to be frivolous or
vexatious or brought for the purpose of delay.
(2) Rules made under this section may fix the minimum number G
of judges who are to sit for any purpose, so however that no
case shall be decided by less than three judges :
Provided that, if the Federal Legislature makes such provision
as is mentioned in this chapter for enlarging the appellate
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1010 SUPREME COURT REPORTS [2018] 12 S.C.R.

A jurisdiction of the court, the rules shall provide for the
constitution of a special division of the court for the purpose
of deciding all cases which would have been within the
jurisdiction of the court even if its jurisdiction had not been
so enlarged.
B (3) Subject to the provisions of any rules of court, the Chief
Justice of India shall determine what judges are to constitute
any division of the court and what judges are to sit for any
purpose.
(4) No judgment shall be delivered by the Federal Court save
C in open court and with the concurrence of a majority of the
judges present at the hearing of the case, but nothing in this
subsection shall be deemed to prevent a judge who does not
concur from delivering a dissenting judgment.
(5) All proceedings in the Federal Court shall be in the English
D language.”
11. Sub-section (3) of Section 214 specifically provided; that subject
to the provisions of any rules of court, the Chief Justice of India shall
determine what judges are to constitute any division of the court and
what judges are to sit for any purpose. The Chief Justice of India thus
E was exercising jurisdiction of constituting any division of the Court and
nominating judges for sitting for different purposes.
12. Part V Chapter IV of the Constitution of India deals with the
Union Judiciary. Article 145 of the Constitution provides for the rules of
the Court. Sub-article (1) of Article 145 provides that subject to the
F provisions of any law made by Parliament, the Supreme Court may from
time to time, with the approval of the President, make rules for regulating
generally the practice and procedure of the Court, including various
subjects as enumerated in sub-article (1). In exercise of power under
Article 145, Supreme Court has framed rules from time to time. The
Supreme Court Rules, 1950, the Supreme Court Rules, 1966 and
G thereafter the Supreme Court Rules, 2013 have been framed in exercise
of power under Article 145(1). In the Supreme Court Rules, 2013, Order
VI deals with constitution of Division Courts and Powers of the Single
Judge. Rules 1 and 2 of Order VI are as follows:-

H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1011
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

“1. Subject to the other provisions of these rules every cause, A
appeal or matter shall be heard by a Bench consisting of not
less than two Judges nominated by the Chief Justice.
2. Where in the course of the hearing of any cause, appeal or
other proceeding, the Bench considers that the matter should
be dealt with by a larger Bench, it shall refer the matter to the B
Chief Justice, who shall thereupon constitute such a Bench
for the hearing of it.”
13. The Chief Justice of India of the erstwhile Federal Court and
the Chief Justice of India as per the Constitution of India has been
exercising the jurisdiction of formulating the roster for convenient C
distribution of Court’s business and constituting the benches from time
to time.
14. This Court had also occasion to consider time and again the
nature and extent of the powers of the Chief Justice of India. For the
purposes of this case, it is useful to refer to few of the precedents in the D
above respect. A Three Judge Bench of this Court in State of Rajasthan
Vs. Prakash Chand and Others, (1998) 1 SCC 1, which judgment has
also been referred to and relied on by the petitioner, had elaborately
considered the subject in issue. In regard to the power of the Chief
Justice in regard to constitution of benches, this Court after referring to
Para 44 of Rajasthan High Court Ordinance, 1949 as well as Rule 54 of E
the Rules of the High Court of Judicature for Rajasthan laid down
following in Paragraph 10 :-
“10. A careful reading of the aforesaid provisions of the
Ordinance and Rule 54 (supra) shows that the administrative
control of the High Court vests in the Chief Justice of the F
High Court alone and that it is his prerogative to distribute
business of the High Court both judicial and administrative.
He alone, has the right and power to decide how the Benches
of the High Court are to be constituted: which Judge is to sit
alone and which cases he can and is required to hear as also G
as to which Judges shall constitute a Division Bench and what
work those Benches shall do. In other words the Judges of
the High Court can sit alone or in Division Benches and do
such work only as may be allotted to them by an order of or

H
1012 SUPREME COURT REPORTS [2018] 12 S.C.R.

A in accordance with the directions of the Chief Justice. That
necessarily means that it is not within the competence or
domain of any Single or Division Bench of the Court to give
any direction to the Registry in that behalf which will run
contrary to the directions of the Chief Justice. Therefore in
the scheme of things judicial discipline demands that in the
B
event a Single Judge or a Division Bench considers that a
particular case requires to be listed before it for valid reasons,
it should direct the Registry to obtain appropriate orders from
the Chief Justice. The puisne Judges are not expected to
entertain any request from the advocates of the parties for
C listing of case which does not strictly fall within the determined
roster. In such cases, it is appropriate to direct the counsel to
make a mention before the Chief Justice and obtain
appropriate orders. This is essential for smooth functioning
of the Court. Though, on the judicial side the Chief Justice is
only the “first amongst the equals”, on the administrative side
D
in the matter of constitution of Benches and making of roster,
he alone is vested with the necessary powers. That the power
to make roster exclusively vests in the Chief Justice and that
a daily cause list is to be prepared under the directions of the
Chief Justice as is borne out from Rule 73, which reads thus:
E “73. Daily Cause List.—The Registrar shall subject to such
directions as the Chief Justice may give from time to time
cause to be prepared for each day on which the Court sits,
a list of cases which may be heard by the different Benches
of the Court. The list shall also state the hour at which and
F the room in which each Bench shall sit. Such list shall be
known as the Day’s List.”
15. This Court in the above case has also referred to earlier
judgments of this Court in Inder Mani and Others Vs. Matheshwari
Prasad and Others, (1996) 6 SCC 587 and different judgments
G rendered by different High Courts reiterating the same principles after
referring to various judgments. After approving the view taken by
different High Courts in various cases, following was laid down in
Paragraph 23:-

H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1013
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

“23. The above opinion appeals to us and we agree with it. A
Therefore, from a review of the statutory provisions and the
cases on the subject as rightly decided by various High Courts,
to which reference has been made by us, it follows that no
Judge or a Bench of Judges can assume jurisdiction in a
case pending in the High Court unless the case is allotted to
B
him or them by the Chief Justice. Strict adherence of this
procedure is essential for maintaining judicial discipline and
proper functioning of the Court. No departure from it can be
permitted. If every Judge of a High Court starts picking and
choosing cases for disposal by him, the discipline in the High
Court would be the casualty and the administration of justice C
would suffer. No legal system can permit machinery of the
Court to collapse…………………”
16. This Court has recorded its conclusion in Para 59, which is to
the following effect:-
“59. From the preceding discussion the following broad D
CONCLUSIONS emerge. This, of course, is not to be treated
as a summary of our judgment and the conclusions should be
read with the text of the judgment:
(1) That the administrative control of the High Court vests in
the Chief Justice alone. On the judicial side, however, he is E
only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone
has the prerogative to constitute benches of the court and
allocate cases to the benches so constituted.
F
(3) That the puisne Judges can only do that work as is allotted
to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts,
no Judge who is to sit singly can sit in a Division Bench and
no Division Bench can be split up by the Judges constituting
G
the bench themselves and one or both the Judges constituting
such bench sit singly and take up any other kind of judicial
business not otherwise assigned to them by or under the
directions of the Chief Justice.

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1014 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (5) That the Chief Justice can take cognizance of an
application laid before him under Rule 55 (supra) and refer
a case to the larger bench for its disposal and he can exercise
this jurisdiction even in relation to a part-heard case.
(6) That the puisne Judges cannot “pick and choose” any
B case pending in the High Court and assign the same to himself
or themselves for disposal without appropriate orders of the
Chief Justice.
(7) That no Judge or Judges can give directions to the Registry
for listing any case before him or them which runs counter to
the directions given by the Chief Justice.
C
Xxxxxxxxxxxx”
17. There are series of judgments reiterating the same view as
expressed by this Court in State of Rajasthan (supra). In an earlier
judgment, Union of India and Another Vs. Raghubir Singh (Dead)
By LRs. Etc., (1989) 2 SCC 754¸ a Constitution Bench of this Court
D
noticed that as a general rule of practice and convenience, the Court
should sit in Divisions and each Division being constituted of Judges
whose number may be determined by the exigencies of judicial need, by
the nature of the case including any statutory mandate relative thereto,
and by such other considerations which the Chief Justice, in whom such
E authority devolves by convention. In Paragraph 27, following has been
observed:-
“…………………………..It cannot be doubted that in order to
promote consistency and certainty in the law laid down by a
superior Court, the ideal condition would be that the entire
F Court should sit in all cases to decide questions of law, and
for that reason the Supreme Court of the United States does
so. But having regard to the volume of work demanding the
attention of the Court, it has been found necessary in India
as a general rule of practice and convenience that the Court
should sit in Divisions, each Division being constituted of
G Judges whose number may be determined by the exigencies
of judicial need, by the nature of the case including any
statutory mandate relative thereto, and by such other
considerations which the Chief Justice, in whom such
authority devolves by convention, may find most
H appropriate……………………………”
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1015
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

18. In D.C. Saxena Vs. Hon’ble The Chief Justice of India, A
(1996) 5 SCC 216, this Court held that it is the Chief Justice’s prerogative
to constitute benches and assign the judicial work and the judicial business
would not hinge on the whim of a litigant. In Paragraph 26, following
has been laid down:-
“26. ………………………….The Chief Justice’s prerogative B
to constitute benches and assignment of judicial business
would not hinge on the whim of a litigant.”
19. This Court further in State of Uttar Pradesh and Others Vs.
Neeraj Chaubey and Others, (2010) 10 SCC 320 held that power of
Chief Justice of allocation of business of the High Court flows not only C
from the provisions contained in sub-section (3) of Section 51 of the
States Reorganisation Act, 1956, but inheres in him in the very nature of
things. Following was observed in Para 9 :-
“9. ………………If the Judges were free to choose their
jurisdiction or any choice was given to them to do whatever D
case they may like to hear and decide, the machinery of the
Court would collapse and the judicial work of the Court would
cease by generation of internal strife on account of hankering
for a particular jurisdiction or a particular
case………………………”
E
20. It was further cautioned in the above case that in event the
distribution is not done by the Chief Justice of India, it may generate
internal strife on account of hankering for a particular jurisdiction or a
particular case. The law laid down by this Court as is clear from
precedents noted above, is that allocation of business of Court by the
Chief Justice not only flows from the Constitutional provisions but is F
held to be prerogative of the Chief Justice and which is a convention
followed from the very beginning. Apart from above, as noted above,
the power of the Chief Justice to allocate cases flows from rules framed
under Article 145 of the Constitution of India.
21. Now, we come to the submission which has been put forth by G
Shri Dushyant Dave forcefully that Chief Justice of India while allocating
cases and forming benches for disposal of business of the Court should
be read as collegium. Shri Dave in support of his above argument takes
sustenance from the Constitution Bench judgment of this Court. In Judges
case i.e. S.P. Gupta Vs. Union of India, (1981) Supp. SC 87, which
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1016 SUPREME COURT REPORTS [2018] 12 S.C.R.

A was subsequently elaborated and clarified by second Judges case i.e.
Supreme Court Advocates on Record Association and Others Vs.
Union of India, (1993) 4 SCC 441 and third Judges case i.e. Special
Reference No. 1 of 1998, (1998) 7 SCC 739. He submits that when
Chief Justice has been read as collegium in exercise of his constitutional
functions of making recommendation for appointment of judges, the same
B
interpretation be put on the word “Chief Justice” while he exercises
power of allocating business of the Court. It is useful to refer to judgment
of Seven Judges Bench of this Court in S.P. Gupta (supra) to recapitulate
the law as laid down in the above cases. This Court had occasion to
consider Article 124(2) of the Constitution, which contains provision for
C appointment of judges of the Supreme Court and of the High Courts.
Article 124(2) is as follows:-
124(2). Every Judge of the Supreme Court shall be appointed
by the President by warrant under his hand and seal after
consultation with such of the Judges of the Supreme Court
D and of the High Courts in the States as the President may
deem necessary for the purpose and shall hold office until he
attains the age of sixty five years:
Provided that in the case of appointment of a Judge other
than the Chief Justice, the Chief Justice of India shall always
E be consulted:
(a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a Judge may be removed from his office in the manner
provided in clause (4).
F
22. Justice Bhagwati, speaking for majority in S.P. Gupta’s case
(supra) while interpreting Article 124(2) laid down following in Paragraph
31:-
“31. ……………The petitioners contended that the Central
Government may, if it thinks fit, consult one or more of the
G
Judges of the Supreme Court and of the High Courts or it
may not consult any and where it does not, the Chief Justice
of India will be the only constitutional functionary required
to be consulted and in such a case the Central Government
must accept the opinion of the Chief Justice of India as binding
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1017
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

upon it. We do not think this argument is well founded. In the A
first place it is not justified by the plain language of clause
(2) of Article 124. This clause clearly provides for consultation
as a mandatory exercise and the only matter which is left to
the discretion of the Central Government is the choice of the
Judge of the Supreme Court and the High Courts who may be
B
consulted. The words “as the President may deem necessary”
qualify only the preceding words “such of the Judges of the
Supreme Court and of the High Courts in the States.” Which
of the Judges of the Supreme Court and of the High Courts
should be consulted is left to the discretion of the Central
Government but consultation there must be with one or more C
of the Judges of the Supreme Court and of the High Courts.
The Central Government must consult at least one Judge out
of the Judges of the Supreme Court and of the High Courts
before exercising the power of appointment conferred by
clause (2) of Article 124. This requirement is prescribed
D
obviously because the Constitution-makers did not think it
desirable that one person alone, howsoever high and eminent
he may be, should have a predominant voice in the
appointment of a Judge of the Supreme Court. But it seems
that this requirement is not complied with in making
appointments on the Supreme Court Bench presumably under E
a misconception that it is not a mandatory but only an optional
provision. The result is that the Chief Justice of India alone is
consulted in the matter of appointment of a Supreme Court
Judge and largely as a result of a healthy practice followed
through the years, the recommendation of the Chief Justice
F
of India is ordinarily accepted by the Central Government,
the consequence being that in a highly important matter like
the appointment of a Supreme Court Judge, it is the decision
of the Chief Justice of India which is ordinarily, for all
practical purposes final. But, as it happens, there are no
criteria laid down or evolved to guide the Chief Justice in G
this respect nor is there any consultation with wider interests.
This is, to our mind, not a very satisfactory mode of
appointment, because wisdom and experience demand that
no power should be vested in a single individual howsoever
high and great he may be and howsoever honest and well
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1018 SUPREME COURT REPORTS [2018] 12 S.C.R.

A meaning. We are all human beings with our own likes and
dislikes, our own predelictions and prejudices and our mind
is not so comprehensive as to be able to take in all aspects of
a question at one time and moreover sometimes, the
information on which we base our judgments may be incorrect
or inadequate and our judgment may also sometimes be
B
imperceptibly influenced by extraneous or irrelevant
considerations. It may also be noticed that it is not difficult to
find reasons to justify what our bias or predeliction or
inclination impels us to do. It is for this reason that we think
it is unwise to entrust power in any significant or sensitive
C area to a single individual, howsoever high or important may
be the office which he is occupying. There must be checks
and controls in the exercise of every power, particularly when
it is a power to make important and crucial appointments and
it must be exercisable by plurality of hands rather than be
vested in a single individual. That is perhaps the reason why
D
the Constitution-makers introduced the requirement in clause
(2) of Article 124 that one or more Judges out of the Judges
of the Supreme Court and of the High Courts should be
consulted in making appointment of a Supreme Court Judge.
But even with this provision, we do not think that the safeguard
E is adequate because it is left to the Central Government to
select any one or more of the Judges of the Supreme Court
and of the High Courts for the purpose of consultation. We
would rather suggest that there must be a collegium to make
recommendation to the President in regard to appointment of
a Supreme Court or High Court Judge. The recommending
F
authority should be more broad based and there should be
consultation with wider interests. If the collegium is composed
of persons who are expected to have knowledge of the persons
who may be fit for appointment on the Bench and of qualities
required for appointment and this last requirement is absolutely
G essential — it would go a long way towards securing the right
kind of Judges, who would be truly independent in the sense
we have indicated above and who would invest the judicial
process with significance and meaning for the deprived and
exploited sections of humanity…………………………”
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1019
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

23. In Second Judges case, i.e. Advocates on Record Association A
case (supra), Justice J.S. Verma, speaking for majority laid down
following in Paragraph 427 and 478:-
“427. …………………………….A further check in that
limited sphere is provided by the conferment of the
discretionary authority not to one individual but to a body of B
men, requiring the final decision to be taken after full
interaction and effective consultation between themselves, to
ensure projection of all likely points of view and procuring
the element of plurality in the final decision with the benefit
of the collective wisdom of all those involved in the process.
The conferment of this discretionary authority in the highest C
functionaries is a further check in the same direction. The
constitutional scheme excludes the scope of absolute power
in any one individual. Such a construction of the provisions
also, therefore, matches the constitutional scheme and the
constitutional purpose for which these provisions were D
enacted.
478. This opinion has to be formed in a pragmatic manner
and past practice based on convention is a safe guide. In
matters relating to appointments in the Supreme Court, the
opinion given by the Chief Justice of India in the consultative
process has to be formed taking into account the views of the E
two seniormost Judges of the Supreme Court. The Chief Justice
of India is also expected to ascertain the views of the senior-
most Judge of the Supreme Court whose opinion is likely to
be significant in adjudging the suitability of the candidate,
by reason of the fact that he has come from the same High F
Court, or otherwise. Article 124(2) is an indication that
ascertainment of the views of some other Judges of the
Supreme Court is requisite. The object underlying Article
124(2) is achieved in this manner as the Chief Justice of India
consults them for the formation of his opinion. This provision
in Article 124(2) is the basis for the existing convention which G
requires the Chief Justice of India to consult some Judges of
the Supreme Court before making his recommendation. This
ensures that the opinion of the Chief Justice of India is not
merely his individual opinion, but an opinion formed
collectively by a body of men at the apex level in the judiciary.
H
xxxxxxxxxxxxxxxxxxxxx”
1020 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 24. In Third Judges case, Special Reference No. 1 of 1998,
(1998) 7 SCC 739, approving the construction as was put by this Court
in Second Judges case, Justice S.P. Bharucha, as he then was, in Para
160 held that collegium should consist of the Chief Justice of India and
four senior most puisne judges of the Supreme Court. In Para 44,
following answers were recorded:-
B
“44. The questions posed by the Reference are now answered,
but we should emphasise that the answers should be read in
conjunction with the body of this opinion:
1. The expression “consultation with the Chief Justice of
C India” in Articles 217(1) and 222(1) of the Constitution of
India requires consultation with a plurality of Judges in the
formation of the opinion of the Chief Justice of India. The
sole individual opinion of the Chief Justice of India does not
constitute “consultation” within the meaning of the said
articles.
D
xxxxxxxxxxxxxxx
3. The Chief Justice of India must make a recommendation to
appoint a Judge of the Supreme Court and to transfer a Chief
Justice or puisne Judge of a High Court in consultation with
E the four seniormost puisne Judges of the Supreme Court.
Insofar as an appointment to the High Court is concerned,
the recommendation must be made in consultation with the
two seniormost puisne Judges of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his
F individual capacity, without consultation with other Judges
of the Supreme Court, in respect of materials and information
conveyed by the Government of India for non-appointment
of a Judge recommended for appointment.”
25. The word “Chief Justice” in Article 124 was read as collegium
in Second and Third Judges case looking to the constitutional scheme
G
and constitutional objective as perceived by the above provision. Article
124(2) expresses constitutional provision of consultation by the President
in such of judges of Supreme Court and the High Courts, as the President
may deem necessary.

H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1021
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

26. The proviso contains specific requirement of consultation with A
the Chief Justice of India in case of appointment of judges other than the
Chief Justice. Article 124 reveals thus two necessary ingredients
regarding consultation, i.e. (i) Chief Justice of India shall always be
consulted in case of appointment of judges other than the Chief Justice;
(ii) the President shall make appointment after consultation with such of
B
the judges of the Supreme Court and of the High Courts in the States as
the President may deem necessary. In addition to consultation with the
Chief Justice of India, consultation with other judges was specifically
made part of the Constitutional scheme. This Court in Second Judges
case and Third Judges Case taking note of the above constitutional scheme
has read the word “Chief Justice” as collegium. Thus, the reason for C
reading the word “Chief Justice” as collegium in Article 124 has
constitutional basis as elaborated in Second Judges case and Third Judges
Case.
27. With regard to procedure and practice of Supreme Court, Article
145 empowers the Supreme Court to frame rules with the approval of D
the President. The word practice and procedure of the Court are wide
enough to include practice and procedure relating to preparation of roster
and allocation of cases. The Rules framed by Supreme Court under
Article 145 specifically refers the Chief Justice in Chapter VI as noted
above, the Chief Justice, who is to nominate the bench for hearing every
case, appeal or matter. There is no indication in any of the constitutional E
provisions or rules framed thereunder that for allocation of cases and
formation of benches, Chief Justice should be read as collegium. For
reading Chief Justice as collegium, under Article 124, there was a
constitutional basis as observed above. This Court had also on several
occasions, noticed and expressed reasons for holding that it is the only F
prerogative of the Chief Justice to allocate cases and nominate the bench.
This Court in State of Uttar Pradesh and others Vs. Neeraj Chaubey
and Others (supra) has made following weighty observations:-
“9. ………………If the Judges were free to choose their
jurisdiction or any choice was given to them to do whatever
G
case they may like to hear and decide, the machinery of the
Court would collapse and the judicial work of the Court would
cease by generation of internal strife on account of hankering
for a particular jurisdiction or a particular
case………………………”
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1022 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 28. The submission of learned Attorney General is that allocation
of cases and constitution of benches, if it is given in the multiple hands,
there shall be differences and hurdles in smooth distribution of work.
We entirely agree with the above submission of learned Attorney General.
We are thus unable to accept the submission of learned senior counsel
for the petitioner that in allocating cases and formulating benches of the
B
Supreme Court, the word “Chief Justice” should be read as collegium,
which submission is unfounded and is rejected.
29. It is submitted by Shri Dave that in the Constitution whereas
Chief Justice was to exercise any power individually, said provisions
have been specifically included. He has referred to Article 130 of the
C Constitution which provides:
“130. Seat of Supreme Court.- The Supreme Court shall sit in
Delhi or in such other place or places, as the Chief Justice of
India may, with the approval of the President, from time to
time, appoint.”
D
He has further referred to Article 146 which provides that the
appointments of officers and servants of the Supreme Court shall be
made by the Chief Justice of India or such other Judge or officer of the
Court as he may direct. He has referred to sub-clause (2) of Article
146, which empowered the Chief Justice of India or some other Judge
E or officer of the Court authorised by the Chief Justice of India to make
rules regarding conditions of service of officers and servants of the
Supreme Court subject to provision of any law made by the President.
There is no doubt that above provision of the Constitution provides for
the Chief Justice to exercise particular powers.
F 30. The submission that Constitution does not specifically mention
Chief Justice to exercise power of allocation of cases and constitution
of Benches, hence, Chief Justice is not empowered to do the same, is
not a valid submission. Under the constitutional scheme itself as
contained in Article 145, the practice and procedure of the Supreme
G Court is to be regulated by the rules made by the Supreme Court with
approval of the President.
31. As noted above, rules framed under Article 145 specifically
empower the Chief Justice to nominate Benches for hearing cases or
appeal. Non-containing of any specific provision in the Constitution
empowering the Chief Justice to frame the roster to allocate the cases is
H
SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1023
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

inconsequential since the entire subject was to be covered by rules made A
under Article 145.
32. In considering the submissions raised in this case, we are
reminded of prophetic words of Mr. Justice Holmes in Northern
Securities Co. v. United States, 48 LAWYERS’ EDITION U.S. 196
(1903). Holmes, J. said: B
“Great cases, like hard cases, make bad law. For great cases
are called great, not by reason of their real importance in
shaping the law of the future, but because of some accident
of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests C
exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even
well settled principles of law will bend.”
33. Our views as expressed above are fortified by a recent
Constitution Bench judgment of this Court in Campaign for Judicial D
Accountability and Reforms v. Union of India & Anr., (2018) 1 SCC
196 and three Judge Bench judgment of this Court dated 11.04.2018 in
Writ Petition (C) No.147 of 2018, Asok Pv. ande Supreme Court India
through its Registrar and Ors., (2018) 5 SCC Scale 481.
34. Shri Dave also raised an alternate submission; that allocation E
of cases and constitution of benches should be undertaken by the entire
Court. He submitted that all the Judges can sit together and formulate
the procedure for constitution of Benches. The rules framed by the
Supreme Court under Article 145 are the rules made by the Court and
when the rules made by the Court specifically empowers the Chief Justice
to nominate Benches for hearing a cause or appeal or matter, which has F
been conventionally the prerogative of the Chief Justice. The submission,
that full Court should allocate cases and constitute the Benches, run
counter to the constitutional scheme read with rules framed under Article
145. We, thus, are not impressed by the submission of Shri Dave that the
roster should be prepared by the entire Court. G
35. In so far as submission made by Shri Dave that in allocation
and listing of cases the Supreme Court Rules, 2013 have to be followed,
no exception can be taken to the above submission. When the statutory
rules are framed the entire business of the Court which is covered by
the Rules has to be dealt accordingly.
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1024 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 36. Law settled by this Court in large number of cases as noticed
above as well as judgments of three-Judge Bench and Constitution
Benches noted above are binding on us and settled law cannot be unsettled
on the premise on which the entire writ petition is founded.
37. Shri Dave during his submission has also referred to the
B handbook on “practice and procedure and office procedure (2017)”.
The handbook is a compilation of practice and procedure and office
procedure for guidance of Registry. He has referred to Chapter V –
Powers, Duties and Functions of the Registrar, Chapter VI – Roster,
Chapter XIII – Listing of Cases. The above handbook is a written guide
for smooth transaction of the business of the Court. Various instructions
C enumerated in different Chapters provide for the conduct and business
of the Court in orderly manner with certainty, there cannot be any dispute
that when a procedure is laid down to be followed by officials of the
Supreme Court, all business is to be transacted in the said manner. As
noted above, for the purposes of this case, we need not dwell into listing
D of some cases as enumerated in the writ petition. Learned counsel for
the petitioner candidly submitted that petitioner is not questioning any
order or judgment referred to in the writ petition. The endeavour of the
writ petitioner is to find out an appropriate procedure for proper and fair
distribution of cases and constitution of Benches.
E 38. Learned counsel for the petitioner has also referred to and
relied on various international practices. During the submission he has
referred to practices pertaining to case assignment in United Kingdom
Supreme Court, High Court of Australia, Supreme Court of Canada and
the practice in United States Supreme Court. The practices and function
of each Court are different which has been evolved by time looking to
F particular background and set of facts. The practice of a Court ripens
into a convention by passage of time and rich heritage of conventions
are time tested which is followed by different Courts. The conventions
and practice of the Supreme Court are time tested which practice and
conventions of this Court have ripened with time which need not to be
G tinkered with or imitated from different international practices of different
Courts. As noted above, the law laid down by this Court is that; the
power of framing roster which inheres in the Chief Justice has
constitutional and statutory backing and by convention it is treated as
prerogative of the Chief Justice. We, thus, cannot import the international
practices in the constitutional and statutory scheme of this Court.
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SHANTI BHUSHAN v. SUPREME COURT OF INDIA THR. ITS 1025
REGISTRAR AND ANOTHER [ASHOK BHUSHAN, J.]

39. Much emphasis is laid down by the learned counsel for the A
petitioner that the procedure and manner of allocation of cases and
formulation of Benches should be one which is accessible to public and
there should be objective criteria of exercise of the power by the Chief
Justice. Manner and procedure for exercising the power should be put
in public domain to allay any kind of misapprehension and to instill
B
confidence in public in general. We have already noticed above that the
manner and procedure for transaction of Court work is elaborately dealt
with Supreme Court Rules, 2013.
40. Further, handbook on practice and procedure and office
procedure also laid down sufficient guidelines and elaboration of the
procedure which is to be followed in this Court. Thus, for transaction of C
business of the Court, there are elaborate rules and procedure and it
cannot be said that procedure and practice of the Court is unguided and
without any criteria.
41. We are, however, not unconscious of the fact that working of
any system is a continuous process and each and every organisation D
endeavours to improve the working of its system suitable to circumstances
and the need. Improvement of functioning is always a goal of every
system and all organisations endeavour to improve the system, which is
always a welcome steps. The Supreme Court cannot be an exception to
above objective and goal. E
42. Before we close, we remind ourselves of following weighty
words of Venkataramiah, J. in Judges’ case:
“1268. ........We are made to realise that we are all mortals
with all the human frailties and that only a few know in this
world the truth behind the following statement of Michel De F
Montaigne: “Were I not to follow the straight road for its
straightness, I should follow it for having found by experience
that in the end it is commonly the happiest and the most useful
track”. .............................But if the judiciary should be really
independent something more is necessary and that we have G
to seek in the Judge himself and not outside. A Judge should
be independent of himself. A Judge is a human being who is
a bundle of passions and prejudices, likes and dislikes,
affection and ill will, hatred and contempt and fear and
recklessness. In order to be a successful Judge these elements
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1026 SUPREME COURT REPORTS [2018] 12 S.C.R.

A should be curbed and kept under restraint and that is possible
only by education, training, continued practice and cultivation
of a sense of humility and dedication to duty. These curbs
can neither be bought in the market nor injected into human
system by the written or unwritten laws. If these things are
there even if any of the protective measures provided by the
B
Constitution and the laws go the independence of the judiciary
will not suffer. But with all these measures being there still a
Judge may not be independent. It is the inner strength of
Judges alone that can save the judiciary. The life of a Judge
does not really call for great acts of self-sacrifice; but it does
C insist upon small acts of self-denial almost every day. The
following sloka explains the true traits of men with discretion
which all Judges should possess:

D

E
[Let men trained in ethics or morality, insult or praise;
let lakshmi (wealth) accumulate or vanish as she likes;
let death come today itself or at the end of a yuga
(millennium), men with discretion will not deflect from
the path of rectitude.)”
F
43. The writ petition is disposed of with the observations as made
above.

Ankit Gyan Writ Petition disposed of.
G

H