The master of the roster: a power that grew while no one was watching

The Chief Justice's power to constitute benches and assign cases is now treated as plenary. It was not designed to be. The four-judges press conference of 2018 raised the question; eight years on, the power has grown without anyone settling whether it should have.

In January 2018, the four senior-most puisne judges of the Supreme Court of India did something that had no precedent in the Court's history. They held a press conference. Sitting at a table at Justice Chelameswar's residence, they read out a letter they had earlier written to the Chief Justice. The letter raised concerns about the assignment of cases. Their concern, as they put it, was that “cases having far-reaching consequences for the nation and the institution” were being assigned to particular benches in a manner that did not satisfy them.¹ They did not name names. They did not identify cases. The press conference itself was the concern made public.

Eight years on, the question the four judges raised has not been institutionally answered. The Supreme Court itself, in two judgments delivered later in 2018, held that the Chief Justice is the master of the roster.²³ The judgments are correct as far as they go. They do not, in this essay's argument, go far enough.

What 'master of the roster' actually means

The phrase has the weight of a doctrine. It is, at its origin, an administrative convenience. The Constitution's text says nothing about it. Article 145(1)(a) and 145(2), read with the Supreme Court Rules, 2013, Order VI, describe the framework within which the Chief Justice constitutes benches.⁴ The framework anticipates the Chief Justice arranging benches because someone must — the Court has thirty-three judges and dispositional capacity is created by allocating them. What the framework does not say is that the Chief Justice's discretion in doing so is plenary, unreviewable, or above any internal check.

The 2018 judgments treated the master-of-roster power as both broad and necessary. They were right on the second count and, I will argue here, ungenerous to the first. The Chief Justice's power is broad because it must be: a constitutional court of thirty-three judges cannot constitute its benches by committee. But broad does not mean unlimited. Discretion that is not visibly constrained by some norm becomes, over time, indistinguishable from the absence of a norm.

Why this is not a doctrinal complaint

The argument is sometimes made that the master-of-roster doctrine cannot be questioned because the Court's existing case law has settled it. This is doctrinally true and substantively beside the point. The case law has settled the existence of the power. It has not addressed the structural question that the four judges raised: in an institution whose foundational decisions depend on who hears them, what protects the integrity of bench-formation from the perception — or the reality — of strategic assignment?

The Constituent Assembly debates contain glancing references to the question of judicial administration but no detailed treatment. Granville Austin's history of the Court treats this as a deliberate choice: the framers, having designed a Court whose strength would grow over time, left the operational details to the Court itself.⁵ This was a reasonable choice in 1950, when the Court had eight judges. It is a less reasonable foundation for an institution that decides constitutional questions implicating the executive and the Parliament with a frequency the framers would not have anticipated.

The shape of the discretion today

The discretion as currently practised has three features. The first is that it is exercised by a single individual — the Chief Justice. The second is that the basis on which it is exercised is not recorded; constitution of benches is communicated through the cause list, which states the result but not the reasoning. The third is that the discretion is not, in any meaningful sense, justiciable. A litigant who believes that a particular case ought to be heard by a different bench has no remedy other than to ask the Chief Justice; the alternative remedy of approaching another court does not exist.

None of these features is unique to the Indian Supreme Court. The structures of judicial administration in many jurisdictions concentrate authority in a single judicial officer. Where these structures function, they do so because of an implicit norm of self-restraint and because of internal practices that constrain the central officer's discretion in ways the constitutional text does not require. In the United States Supreme Court, the Chief Justice writes the majority opinion only when in the majority and only when senior-most in the majority — a constraint by convention, not by rule. Internal procedures of this kind do not exist in India's Supreme Court in any documented form.

The counter-argument, addressed honestly

The strongest defence of the existing arrangement is institutional capacity. The argument runs: the Chief Justice has visibility into the Court's docket, expertise distribution, and pendency that no committee can replicate. To constitute thirty thousand cause-list items per month requires speed and specialisation. Adding consultation, even token consultation, would slow the Court down materially.

There is real force to this. Anyone who has spent time observing the Court's listing system knows that the volume is staggering and that the discretion is exercised, in the great majority of cases, in ways that no observer would call problematic. Routine cases are assigned by subject matter; transfer petitions go to designated benches; criminal appeals are distributed by date. The discretion's exercise is, in the typical case, transparent in operation even if not in articulation.

The defence proves something narrower than it claims. It establishes that institutional capacity favours leaving routine bench-formation to the Chief Justice. It does not establish that the same logic should govern the small number of cases — perhaps fifty or seventy per year — in which the choice of bench has substantive consequences for the case's outcome. For these cases, the institutional-capacity argument is reversed: the consequence of strategic assignment is so material that the absence of any internal check is more troubling, not less. A court whose foundational decisions depend on who hears them cannot survive a discretion with no internal check.

What an honest reform would look like

I will not propose a programme. I will say, modestly, what reform would not have to do. It would not have to displace the Chief Justice's authority. It would not have to slow down the Court's listing system. It would not have to introduce a justiciable remedy. It would have to do one thing: introduce an internal check on the small number of cases where the choice of bench is consequential.

The simplest mechanism would be a consultation requirement for cases involving a constitutional question, the validity of a Central or State law, or the conduct of a constitutional functionary. The Chief Justice would constitute the bench, but only after consulting at least the next two senior-most puisne judges. The consultation would be recorded internally, not publicly. The Chief Justice's discretion would remain decisive, but the discretion would be visible to two other judges before it is exercised.

This is not a radical proposal. The Madras High Court has, by an internal resolution of 2019, formalised something close to it for significant constitutional matters.⁶ The Bombay High Court's internal practice has long required the Chief Justice's consultation with the senior-most puisne in administrative matters, though not specifically in case-assignment. The Indian Supreme Court could do the same with no constitutional amendment, no new statute, and no rule change. A circular from the Chief Justice, communicated internally, would suffice.

What survives

The four judges' press conference is now a journalistic anniversary. It is referred to from time to time, but the question it raised — the question that drove four senior-most judges to a step that had no precedent — is treated as having been answered by the 2018 judgments. It has not. The judgments answered the doctrinal question; the structural question is open. An institution whose foundational decisions depend on who hears them cannot survive a discretion with no internal check — not because the Chief Justice will misuse the discretion in the typical case, but because in the cases that matter, the absence of any internal check is itself a constitutional weakness. The Court will, eventually, have to address it. The question is whether it does so on terms it sets for itself or on terms that some future moment forces upon it.