“If the King was not above law, but under God and the law, the Master of the roster, the Chief Justice too is not above the law”


Mathews . J. Nedumpara 9820535428

  1. A Division Bench of the Allahabad High Court dismissed with a cost of Rs. 20,000/- a petition by one Arun Misra as a ‘party – in – person’ seeking a direction that certain Writ Petitions instituted by him shall not be listed before a particular judge. The order of the court is cryptic and it does not state what exactly is the factual matrix. All that is discernible from the order is that the petitioner had sought a direction to the Registry of the Court not to list cases filed by him before a “Particular Judge”.
  2. The order merely says that the Petition is misconceived because it is well settled that the chief justice is the master of the roster and it is his prerogative to decide by which judge or judges a case is to be heard, and therefore no direction could be issued to the Registry.
  3. Let me assume that the instant case of Arun Misra as petitioner is indeed a bad one and no order on the facts of the case could have been passed in his favor and his plea is liable to be rejected. Then also, it was imperative for the court to have stated the bare minimal facts. It appears that the Court rejected the plea of Arun Misra for the sole reason that since the Chief Justice is the master of the roster no orders could be passed as sought for. In other words, the court has absolutely no jurisdiction and no writ would lie against the Chief Justice. Without any discussion whatsoever on the absolute power the Chief Justice purportedly enjoy, learned judges further went on to observe that the prayer of Misra was “strange”.
  4. The pertinent question is: did Sri. Arun Misra do something “ strange’’ or “misconceived” for his petition to be summarily dismissed with a cost. In my humble view he certainly did not.
  5. Why do I say so? The reason is simple. The master of the roster is a public authority and in the allocation of cases he is only discharging an executive function and not judicial. The master of the roster, the Chief Justice, therefore is a “state” within the meaning of article 12. And article 13 expressly prohibit the “state” from acting in a manner violative of the fundamental rights. Therefore, a writ will lie. Even a suit in an ordinary civil court will lie, because the constitutional immunity is limited to the President and Governors. In S.P. Guptas’s case then Chief Justice of India Justice Y.V. Chandrachud engaged a lawyer and even filed an affidavit. He did not claim any immunity or privilege and had the humility,nay, greatness to acknowledge all are equal before law. He thereby set an admirable example for the posterity. Interestingly, in the 1960s a Judicial Magistrate in Kerala issued a Summons to then Chief Justice of Kerala taking cognisance of a complaint alleging forging of records. Alas, how independent and fearless our sub ordinate judiciary was then. Can we even imagine it, today?
  6. Sri. Arun Misra rightly or wrongly felt aggrieved and continues to apprehend that if the cases where he appears as a lawyer is heard by a particular judge, he will not get justice. Can he be remediless? That “where there is an injury law will provide for a remedy”, is a fundamental principle. Our law certainly provides for a forum for him to plead and to be won or lost. Otherwise, we are not governed by rule of law. He is entitled to institute a suit or writ and it is the duty of the court to adjudicate the matter on its merits, on facts and law. There can be no two opinions about it.

7.The Great Jurist, Bracton in the 13th century said “quod rex non debet esse sub homine set sub deo et lege” namely, that the king should not be under the authority of man, but of God and the law”. That is the very foundation of common law which we have inherited from the British. Nobody is above the law. Therefore, where Arun Misra felt aggrieved that he had been wilfully denied justice by a particular judge, and if he further apprehends that if his cases are listed before that judge, there is going to be wilful denial of Justice, then the law would certainly provide him remedies. He cannot enforce his remedies unless there is forum, court. The “strange” thing he did was to invoke the forum, namely, to institute a Writ petition.

  1. The course of action which Arun Mishra adopted, though certainly legal, does not offer a pleasant scenario. If all the judges conduct themselves in a manner worthy of the high office they occupy and command respect and confidence of the lawyers and litigants, such a situation would never arise. The Independence and impartiality of the Judges is the very foundation of our justice delivery system and they should gain the confidence and trust of the litigants by the quality of their judgement and exemplary conduct. It is no utopian concept. Even today there are many judges who maintain the highest of standards. But they are many who wilfully deny justice. What is the solution where a litigant or a lawyer has genuine grievance?
    We need a solution. Because there are many like Arun Misra who feels that justice has been wilfully denied. The remedy is for the Parliament to enact a law concerning judicial Recusal- balancing the conflicts concerns, namely, the need for protecting the judges against unjustified demand for recusal on the one hand and the legitimate demand litigant public for protection against wilful denial of justice, on the other hand. Till such time such a law is enacted, which is only distant possibility, the chief justice india/ HCs shall put in place a mechanism to address the grievance against judges of partiality and bias, nay even enmity. There can be no power without a corresponding obligation or duty. If the Chief Justice as the master of the roster has the power to allot cases, there is a corresponding obligation on his part to redress the grievance of the lawyers and litigants. As of now, there is no mechanism. Those who complain against judges are victimized.