A day after Justice J Chelameswar refused to examine a PIL by former Union law minister Shanti Bhushan saying he did not want his order to be reversed again in 24 hours, another bench of the court on Friday made a decision to examine the PIL which had challenged the existing roster practice of allocation of cases by the Chief Justice of India (CJI).
"Prima facie, I dont think the Collegium should be treated as the Chief Justice of India", Justice Sikri said.
"Lakhs of cases are filed here". Justice Sikri asked Dave at one point.
"That is not my case".
"In 14 cases, the CJI used his power and this raises very, very serious questions". That has not been happening in many cases.
During the arguments, Dave said that "sensitive" cases should be allocated by the collegium as in a democracy, there was "nothing called absolute discretion" and there were matters which were "sensitive" for the nation and for survival of democracy.
Justice Bhushan told Dave that "what may be "sensitive" for you may not be sensitive for us (the Supreme Court)".
Without referring to the merits of Justice Chelameswars order, Dave said that since the CJI was hearing a Constitution bench case at that time, Justice Chelameswars order in that matter was "valid".
However, responding to these submissions, Justice Sikri observed that interpreting the CJI to include the collegium of senior judges was "not feasible".
"You are aggreived by the manner of exercise of power by CJI".
"It can not be expected that the collegium will sit everyday or two-three days a week for this only".
Dave then cited the instance of an arbitrary listing by a former CJI and how the Supreme Court later undid the damage in review. "If you can come up with some other suggestion, then maybe we could consider", said Sikri J. After he retired, all those orders were reviewed.
However, Dave said, "But there is caveat. You have to devise a procedure not for us, but for the sake of the institution", Kapil Sibal weighed in.
A Bench of Justices A.K. Sikri and Ashok Bhushan asked Attorney-General K.K. Venugopal to assist the court and posted the next hearing for April 27.
The apex court bench will examine the petition despite two of its judgments supporting - dated November 2017 and April 9, 2018 upholding the CJI as the complete administrative authority to allocate cases and constitute Benches. Both judgments were pronounced by Benches led by Chief Justice of India Dipak Misra.
On November 10 previous year, a five-judge constitution bench had overturned the order passed by the bench headed by Justice Chelameswar, which had asked for setting up a larger bench to hear the matter of alleged bribes being taken in the name of judges.
The petition also enlists a number of politically sensitive cases in which there was "gross abuse of power" as regards listing.
On the submission of the petitioner that important cases should be heard by CJI and other four senior most judges of the Supreme Court, the bench indicated that while it would be hard to entrust task of allocation of important cases to Collegium headed by CJI, it was not averse to devising some alternative yet feasible mechanism for allocation of cases to benches.