Why Chidambaram’s petition against CBI custody was not listed in the Supreme Court on Monday

Two years after four judges raised questions over the manner in which cases were allotted in the Supreme Court, proceedings in the Chidambaram case have brought back the spotlight to the implications of the Chief Justice of India being the “master of the roster” who allots cases to other judges.

On Monday, August 26, lawyers representing former Union Home Minister P Chidambaram in Supreme Court were surprised to find a fresh petition they had moved on August 23, Friday, was not listed for hearing. Chidambaram had been arrested under money laundering charges in the INX Media case on August 21. His lawyers had filed a petition in the Supreme Court challenging a lower court order granting the Central Bureau of Investigation custody of their client.

On August 23, a two-member bench led by Justice R Banumathi had directed the Supreme Court registry to place the matter before it on Monday along with another petition that Chidambaram had filed on August 21 seeking interim protection from arrest.

Bar and Bench reported that when Chidambaram’s lawyer Kapil Sibal mentioned the fresh petition on Monday morning, Justice Banumathi said that the registry needed an order from Chief Justice of India Ranjan Gogoi for listing. By implication, this meant that either the registry failed to place the matter before Chief Justice Gogoi over the weekend or he had, in exercise of his powers as the master of the roster, decided that the petition need not be listed on Monday despite the order of the bench led by Justice Banumathi on Friday.

This raised a key question: Do the powers of the master of the roster override the liberty of judges to list matters they feel are connected to cases that are already pending?

Custody and petitions

Chief Justice Gogoi’s decision not to list the petition for hearing on Monday came days after he ignored the plea of Chidambaram’s lawyers to get the matter heard immediately.

On August 20, after the Delhi High Court had refused to grant Chidambaram anticipatory bail in cases of alleged money laundering filed by the CBI and the Enforcement Directorate, the Congress leader had appealed to the Supreme Court.

Last Wednesday morning, his lawyers had mentioned the petition before Justice NV Ramana, the senior-most judge available in the Supreme Court at that time since the Chief Justice and others were part of the Constitution bench hearing the Ayodhya dispute. Justice Ramana refused to grant an urgent hearing and asked the registry to place the matter before Chief Justice Gogoi, who is also the master of the roster.

While the lawyers were hoping Justice Gogoi would decide on the urgent listing of the petition during the lunch break, nothing happened. He resumed the Ayodhya hearing as part of the five-judge bench. Attempts by Chidambaram’s lawyers to mention the matter before Justice Gogoi also failed as he, along with the other four judges, promptly left the court hall after the Ayodhya hearing.

This meant that there was no immediate relief for Chidambaram. In the evening, the cause list showed that his petition had been listed for hearing on August 23.

In the meantime, the CBI arrested Chidambaram on Wednesday night and produced him before the special court on Thursday morning. The special court rejected his bail application and granted the CBI custody of Chidambaram till Monday.

Given the special court order, the petition that Chidambaram moved before the Supreme Court seeking pre-arrest bail in the CBI case became redundant.

On Friday, when the petition came up before the bench led by Justice Banumathi, Chidambaram’s lawyer Kapil Sibal argued that the former Union Minister was denied an opportunity to present his case before the Supreme Court as the CBI hurriedly arrested him. He insisted that the case be kept alive so that submissions could be made. At the same time, he informed the court that a fresh petition against the custody order passed by the lower court in the CBI case has also been filed and requested that it be taken up for hearing.

In its order, the bench asked the registry to place both the existing petition that Chidambaram had filed on August 21 against the Delhi High Court order and the fresh petition filed on Friday against the special court order granting custody to the CBI before it on Monday. The order said:

“Having regard to the submissions made by Mr. Kapil Sibal and Mr. A.M. Singhvi, learned senior counsel, list SLP(Crl.)No.7525 of 2019 on Monday, the 26th August, 2019. The Registry is also directed to list SLP(Crl.)Diary No.30469 of 2019 along with SLP(Crl.)No.7525 of 2019. Arguments in both these matters be advanced on Monday, the 26th August, 2019.” 

Meanwhile, in the case filed against Chidambaram by the Enforcement Directorate, the court on Friday provided interim protection from arrest till Monday.

Case unlisted

By Sunday evening, Chidambaram’s lawyers were surprised that the order of Justice Banumathi bench asking for the fresh petition to be listed on Monday had not been followed. The registry had listed only the existing petitions that were being heard by the bench.

On Monday, when Sibal mentioned the new petition, Justice Banumathi said that the registry needed an order from Chief Justice Gogoi for listing. This essentially means that the case was not listed despite the Friday order of the bench expressly asking the registry to do so.

In 2017, when a similar controversy relating to the powers of the Chief Justice arose, a five-judge bench said: “Needless to say, neither a two-judge bench nor a three-judge bench can allocate the matter to themselves or direct the composition for constitution of a bench.”

Given this legal precedent, it is clear that it is the Chief Justice of India who has to decide on listing fresh matters.

However, the Chidambaram case raises a key question: while it is a settled matter that the Chief Justice is the master of the roster, does a bench not have the right to order the listing of petitions before itself on a particular date if it feels the matters are connected to one that it is already hearing?

This has also reignited the larger debate. Should the administrative power of the Chief Justice as the master of the roster supersede the judicial powers of the benches, if a bench has ordered the listing of a particular connected case?

Monday’s order of the bench in the new petition asked the registry to place the matter before the Chief Justice for listing before an appropriate forum.