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Laws have to be framed and the ‘master of roster’ power needs to be simplified: recent panel discussion on Personal Freedom and Judiciary

Dated: December 22, 2020

                                                                                                                                                          - By Megha Bhatia

The unbridled and absolute powers bestowed on India's Chief Justice and High Court Chief Justices, who are specifically listing cases and assigning cases to Benches as master of roster, is an issue that needs to be tackled, former Attorney General Mukul Rohatgi said on December 22, 2020. Rohatgi was speaking at a panel discussion organised on the topic “Personal Freedom and Judiciary”.  The discussion was arranged as part of the book launch by the late Justice Rajinder Sachar’s “In pursuit of Justice: An autobiography.”

Other speakers on the panel, moderated by journalist Rajdeep Sardesai, were former Supreme Court judge, Justice Madan B Lokur, Senior Counsel Kapil Sibal and social activist Medha Patkar.

Laws have to be framed and the master of roster power needs to be simplified, he said, agreeing with Senior Advocate and Congress leader Kapil Sibal, who also said that a weakness that needs to be fixed is the master of roster power.

‘Master of the Roster’ refers to the privilege of the Chief Justice to constitute Benches to hear cases.

“I agree with Kapil that this master of roster and absolute unbridled power to direct which case will be heard first and which will be heard later and how benches will hear cases is definitely a problem. It has to be streamlined and some rules have to be made. We had a huge problem on this account about two years ago,” he said in an apparent reference to the controversy surrounding listing of cases during the tenure of former CJIs including Justices Dipak Misra and Ranjan Gogoi.

“Master of roster and absolute unbridled power to direct which case will be heard first and which will be heard later is definitely a problem,” Rohatgi commented.

Rohatgi said that the issue of master of roster is just one of the problems faced by the Supreme Court. He outlined how the judiciary faced a variety of problems, including mounting pendency as a result of the failure of the structure. He said this was partially due to the fact that the Supreme Court had become a “super appellate court.”

“The court is swamped by (umpteen) appeals that come to it. There are a variety of reasons for it. The court itself has opened the doors much wider than what the Constitution desired. So, it has become a ‘super appellate court’. Everything from the High Court’s go to the Supreme Court, that was not what was intended,” he said.

He also highlighted how, with tribunalisation, the already mounting arrears have risen as there are statutory appeals directly to the Supreme Court from most tribunals.

“Additionally, there have been tribunals created which has direct statutory appeals to the Supreme Court. Again this was not intended by the Constitution. If you have 30 judges and the population is one billion plus then, there is litigation galore. If that kind of stuff comes on your head, how can you carry that burden. The system is collapsing,” he said.

Interestingly, Rohatgi did not hesitate to acknowledge the blame that senior lawyers such as Kapil Sibal and himself had contributed to the issue.

“Some say it has collapsed and some say is it collapsing, and to some extent lawyers like Sibal and I are to blame,” Rohatgi admitted. “To some extent, lawyers like Sibal and I are to blame,” admitted Rohtagi.

“I was waiting for you to say that,” Sardesai who was moderating the discussion chimed in. “I am saying so. The kind of cases that comes to us, we are also overawed at times with the numbers and figures which are involved. We go running to the CJI who is the master of roster and say 'this will happen, that will happen, Rs. 10,000 crores will go down the drain, 5,000 jobs will be lost’. So everybody is human. That is why these cases at times get priority,” he added.

He also reacted to the declaration of Justice Madan Lokur that judges should be made of sterner things. “From where do we get judges? From lawyers, and good lawyers are not ready to become judges because of low remuneration. An average lawyer, if he/ she becomes a judge will get only 1/5th of what the person earns as a lawyer. A good lawyer as a judge will get only 1/20th. So they would not want to become a judge. A lawyer has children. Who is going to get them married, how will they be educated? These things will weigh in the minds of the law. So those old notions are gone,” he said.

He also said that increasing salaries of judges would stir a hornets’ nest again and if that is achieved, bureaucrats, officials, and military personnel will all call for a pay rise. 

However, Senior Counsel Kapil Sibal maintained that while the institution may have its disadvantages, the issue rests with individual judges at times. He cited the master of roaster example to suggest that although the system was already in operation before, its disadvantages have only recently become evident.

He pointed out how one journalist was listed before the Supreme Court during the holiday, while the Court is reluctant to entertain the case when it comes to another journalist, Siddique Kappan, who was arrested by the Uttar Pradesh police, and asks the petitioner to “to go to High Court and Trial Court.”

“If you have your heart in the right place you will never go wrong. That is the problem with the Indian judiciary,” Sibal added in the last.