New Delhi: Senior advocate Dushyant Dave has expressed “deep anguish” over the listing of certain cases by the Supreme Court registry, in an open letter to Chief Justice of India D.Y. Chandrachud.
In disregard of the rules and established practice, Dave wrote in the letter Wednesday, among other things, cases heard by senior judges were being moved to benches of juniors despite the former being available to continue the hearings.
Saying it would not be proper for him to list down these matters, he added, “But it would not be out of place to mention that these matters include some sensitive matters involving human rights, freedom of speech, democracy, and functioning of statutory and constitutional institutions.”
Dave said that CJI Chandrachud had administrative control over the court, “but on the judicial side, you are the ‘first among the equals’”.
The letter refers to the Handbook on Practice and Procedure of the Court and Office Procedure on Judicial side, published by the Supreme Court of India in 2017.
Among other things, this handbook says, “If first coram is not available on a particular day on account of retirement, the case shall be listed before the judge constituting the second coram. If second coram is also not available, the case shall not be listed on that day.”
A legal term, ‘coram’ means ‘in the presence of’. In simple words, the rule means that if the senior judge on a bench retires, only then will a case be listed before a junior judge.
Referring to other similar provisions, Dave said once a case has been listed or notice issued or the case has been dismissed or disposed of or has been heard in part, it can then be listed only before the bench of the senior judge.
Even so, Dave added, he had come across several cases listed before various benches of the Supreme Court where, after the first listing or after notice being issued, they were listed before other benches.
Despite the senior judge being available, he said, the matters were listed before a bench in which the junior judge is the presiding judge.
Dave urged the CJI to look into this immediately and take corrective measures, saying, “Sir, this does not augur well for the institution of the Supreme Court of India under your leadership. The institution is highly respected by all. That respect must continue forever, in all respects.”
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CJI’s powers
Dave’s letter also highlights several other provisions on listing in the handbook.
For instance, he pointed out that the handbook says, “Save in case of a single coram, wherever a main case or application could not be listed before the first coram, it shall be listed before the second and then third coram, wherever applicable, and, if available, in seniority”.
Another note in the handbook gives the Chief Justice the power to list the case in the event of non-availability of the single judge or members of the bench due to retirement or otherwise.
It says that such a case shall be listed as per subject category through computer allocation, unless otherwise ordered by the CJI.
A third note in the handbook adds, “Notwithstanding anything contained expressly or otherwise in this chapter, the Chief Justice may allocate or assign any appeal, cause or matter to any judge or judges of the court.”
Referring to this note, Dave said this is “an extraordinary power to upset the roster and to ‘pick and choose’”.
However, he added that “the Chief Justice can only exercise the power as per the practice and in case the coram as per roster is available the Chief Justice cannot exercise power to take away any case before the available coram and place it before another”.
“We have no doubt that as master of roster, you have not exercised power under Note 3 referred above as no information is available in this regard,” he said.
Dave also expressed regret for taking recourse to writing an open letter, but added that “efforts by some of us to meet you personally have not yielded any result, despite of appointment having been sought months ago by a senior and respected colleague for and on behalf of many of us”.
He also wrote that emails sent to the registrar by lawyers raising grievances about the issue had not been responded to.
‘Better left unsaid’
Last week, too, Dave had raised an objection over one of his cases being listed “wrongly” before a bench of the Supreme Court.
On Tuesday, petitions challenging the central government’s delay in judges’ appointments were not listed in the SC despite a direction by the court to list it on 5 December in a previous order passed on 20 November. The case was also initially shown on the causelist for Tuesday, but later deleted.
Advocate Prashant Bhushan, appearing for one of the petitioners in the judges’ appointments case, pointed this out before the bench comprising justices Sanjay Kishan Kaul and Sudhanshu Dhulia, and asserted that it was “strange” that it was deleted.
Justice Kaul clarified that he had neither deleted the matter nor expressed any unwillingness to take it up. When Bhushan commented that such a deletion was “very unusual”, Justice Kaul responded: “Some things are best left unsaid”.
(Edited by Sunanda Ranjan)