NEW DELHI: Top judges of Supreme Court have taken strong exception to the order passed on Tuesday by a bench of Justices J B Pardiwala and R Mahadevan castigating an Allahabad high court judge for lack of knowledge in criminal law and de-rostering him from hearing criminal cases for life, and are mulling steps to remedy an unpleasant situation created in breach of repeated SC rulings.
A concerned Chief Justice of India B R Gavai consulted his senior colleagues and is now discussing ways and means to remedy the order that has created difficulties for the chief justice (CJ) of one of the oldest high courts of India, at Allahabad.
SC has repeatedly ruled that the CJ of an HC is the master of the roster and he alone can allocate, roster and assign cases to single, division and three-judge benches in HC and that his discretion is not amenable to judicial orders .
Justices Pardiwala and Mahadevan ordered the Allahabad HC CJ to "immediately withdraw the present criminal determination from the concerned judge" and "make the judge sit in a division bench with a seasoned senior judge". They also said, "We further direct that the concerned judge shall not be assigned any criminal determination, till he demits office".
Irrespective of the folly of the HC judge, SC, which gives primacy to principles of natural justice, passed the caustic and damaging order against the judge without giving him an opportunity to explain why he passed the impugned directive. Justices Pardiwala and Mahadevan called the HC judge's order one of the worst they had come across in their tenures as SC judges, and said, "The judge concerned has not only cut a sorry figure for himself but has made a mockery of justice. We are at our wits' end to understand what is wrong with the Indian judiciary at the level of HC."
TOI spoke to a number of former CJIs, who too expressed concern over the manner in which the bench led by Justice Pardiwala proceeded to castigate the HC judge, stressing that errors in HC orders are not uncommon and are regularly appealed in SC.
A judge's mistake in appreciating legal points or facts in a particular case cannot empower SC, while deciding appeals against an HC judgment, to castigate the judge who authored that judgment and take punitive measures like de-rostering him, which, the ex-CJIs said, was the sole prerogative of the HC CJ.
Incidentally, the bench of Justices Pardiwala and Mahadevan had fixed timelines for the President and governors to grant or refuse assent to bills passed by state assemblies, while granting "deemed approval" to bills pending with the TN governor. The President has since sent a reference to SC seeking its opinion on whether the apex court has the power to fix timelines for her and governors when the Constitution does not provide for the same, and whether SC can use powers under Article 142 to grant deemed approval to bills.
In the case of Braj Kishore Thakur vs. Union of India (1997), SC had ruled: "Higher courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors which could possibly have crept in findings or orders of courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is best to remember the words of a jurist that 'a judge who has not committed any error is yet to be born'..."
In Rajasthan vs Prakash Chand (1997), another three-judge bench said "that the administrative control of HC vests in the chief justice alone. On the judicial side, however, he is only the first amongst equals. The CJ 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. The puisne judges can only do that work as is allotted to them by the chief justice or under his directions. 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." This ruling was made applicable to SC by a three-judge bench's judgment in 2018.
A concerned Chief Justice of India B R Gavai consulted his senior colleagues and is now discussing ways and means to remedy the order that has created difficulties for the chief justice (CJ) of one of the oldest high courts of India, at Allahabad.
SC has repeatedly ruled that the CJ of an HC is the master of the roster and he alone can allocate, roster and assign cases to single, division and three-judge benches in HC and that his discretion is not amenable to judicial orders .
Justices Pardiwala and Mahadevan ordered the Allahabad HC CJ to "immediately withdraw the present criminal determination from the concerned judge" and "make the judge sit in a division bench with a seasoned senior judge". They also said, "We further direct that the concerned judge shall not be assigned any criminal determination, till he demits office".
Irrespective of the folly of the HC judge, SC, which gives primacy to principles of natural justice, passed the caustic and damaging order against the judge without giving him an opportunity to explain why he passed the impugned directive. Justices Pardiwala and Mahadevan called the HC judge's order one of the worst they had come across in their tenures as SC judges, and said, "The judge concerned has not only cut a sorry figure for himself but has made a mockery of justice. We are at our wits' end to understand what is wrong with the Indian judiciary at the level of HC."
TOI spoke to a number of former CJIs, who too expressed concern over the manner in which the bench led by Justice Pardiwala proceeded to castigate the HC judge, stressing that errors in HC orders are not uncommon and are regularly appealed in SC.
A judge's mistake in appreciating legal points or facts in a particular case cannot empower SC, while deciding appeals against an HC judgment, to castigate the judge who authored that judgment and take punitive measures like de-rostering him, which, the ex-CJIs said, was the sole prerogative of the HC CJ.
Incidentally, the bench of Justices Pardiwala and Mahadevan had fixed timelines for the President and governors to grant or refuse assent to bills passed by state assemblies, while granting "deemed approval" to bills pending with the TN governor. The President has since sent a reference to SC seeking its opinion on whether the apex court has the power to fix timelines for her and governors when the Constitution does not provide for the same, and whether SC can use powers under Article 142 to grant deemed approval to bills.
In the case of Braj Kishore Thakur vs. Union of India (1997), SC had ruled: "Higher courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors which could possibly have crept in findings or orders of courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is best to remember the words of a jurist that 'a judge who has not committed any error is yet to be born'..."
In Rajasthan vs Prakash Chand (1997), another three-judge bench said "that the administrative control of HC vests in the chief justice alone. On the judicial side, however, he is only the first amongst equals. The CJ 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. The puisne judges can only do that work as is allotted to them by the chief justice or under his directions. 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." This ruling was made applicable to SC by a three-judge bench's judgment in 2018.
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