‘If all Judges are Equal, Why Should Certain Kind of Cases go to a Particular Judge,” Asks Justice Lokur

New Delhi: At a time when several legal luminaries and common citizens have raised questions about listing or shifting of cases by the SC registry, former Supreme Court Justice Madan B Lokur has joined in to question that “if all judges are equal, why should certain kind of cases go to a particular judge?”

Sharing his views on various issues of concern raised vis-à-vis the Supreme Court at the Bhopal Literature and Art Festival, Justice Lokur also spoke about the recent exclusion of the Chief Justice of India (CJI) from the high-level panel to select the Chief Election Commissioner and Election Commissioners, as reported by Live Law.

Read Also: ‘Bulldozer Justice Taking Over Natural Justice, 5 Crore Cases Pending in Courts’: Justice Lokur

Speaking at a session on “constitutional morality”, Justice Lokur, when asked about the SC roster, and why was entire power was vested in the CJI and can’t the entire apex court be involved in the process, noted that in the past, “for some reason”, some sensitive cases were going to a particular judge or a particular set of judges, which was a “bit of a problem”, Live Law reported.

“Arbitrariness is the antithesis of equality. If all judges are equal, you cannot arbitrarily say that, well, certain kinds of cases will go to a particular judge and no one else,” he said, as quoted by Live Law.

Justice Lokur, who was among the four SC judges, who had called a press conference in 2018 over the “roster controversy”, said: “Why should some kinds of cases go only to a particular judge…that created a bit of a problem. That problem, unfortunately, is persisting.  The perception is that the cases that are sensitive are going to a particular judge or a particular set of judges and not to others…that perception creates a problem, that is why the master of the roster, i.e, the CJI, is doing this.”

Justice Lokur is not the only one. In December 2023, senior advocate Dushyant Dave had also written to the CJI (master of the roster) on the issue, raising questions over how cases were being listed by the SC registry, urging him to look into the matter, as it did not “augur well’ for the institution of Supreme Court of India.

Citing various constitutional provisions and norms, Dave had pointed out that “some sensitive” matters related to human rights, freedom of speech, democracy, and functioning of statutory and constitutional institutions, the benches have been changed in “clear disregard of rules”.

“Despite first coram being available the matters are being listed before a Hon’ble Benches in which second coram presides. Matters listed before Court No. 2, 4, 6, 7 amongst others have been shifted out and listed before other Hon’ble Benches in clear disregard of the Rules, the Handbook on Practice and Office Procedure referred above and established Practice and Convention. Curiously, the Seniority of the first coram is also being ignored in doing so. Our attention is also been drawn by esteemed Colleagues at the Bar, Seniors, and Advocates on Record (AoRs), about various cases in which they have appeared in the first instance on numerous occasions, later the matters being listed before different Benches. It would not be proper for me to enumerate these matters as many of them are pending” he wrote in the letter, published in The Wire.

Senior advocate Prashant Bhushan had also pointed out in a letter to the SC registry on ‘arbitrary allocation of cases to Justice Bela M Trivedi”.

Referring to an article published in Article 14, that pointed out that “eight politically sensitive cases had been moved to one judge in four months”, Bhushan said this was done “even though the rules of assignment say they should remain with the senior judge or before a judge hearing a similar case.”

According to The Wire, in his letter, “Bhushan specifically expresses concern about a batch of matters challenging Unlawful Activities (Prevention) Act cases coming up before Justice Trivedi. On November 29, when appearing in this matter which came up before Justices Trivedi and Satish Chandra Sharma along with Umar Khalid’s bail plea, Bhushan had orally requested that the matter be heard by the appropriate bench, Livelaw reported.”