On Constitution of Constitutional Benches by the then CJI, Dipak Misra

By: Anmol Jain


Dipak Misra, CJI, as he was then, has retired as the 45th Chief Justice of India. During his tenure as the master of the roster, he authored multiple path-breaking verdicts including decriminalisation of adultery and same-sex marriage, upholding the vires of the biometric database of the citizens – Aadhaar, judicial restraint on issue pertaining to criminalization of politics, entry of women in the Sabarimala temple, execution of living will, and so on. Many of his judgments have collected praise from the four corners of the society. Alongside this, concerns were also raised regarding his manner of constitution of benches. The infamous press conference of January 12th 2018 by the four senior-most judges of the Apex Court is a crystal-clear proof of friction among the Supreme Court judges regarding the allocation of cases and designing of the roster by the then CJI. Similarly, there has been a critique of the manner in which he constituted the six constitutional benches during the last months of his tenure. It has been argued that the then CJI constituted benches in a manner which would help him derive pre-determined judgments.

I write this article as a response to such allegations against the post of the CJI. Herein, I endeavour to argue that the manner, be it of any kind, of constituting constitutional benches by the then CJI, or any other master of the roster for a generalist perspective, should not be questioned.


I shall present my arguments through two itineraries. First, I shall establish that the CJI is the sole authority to decide the roster of the Supreme Court and constitute the benches. Second, I shall argue that even the anticipation that the CJI has constituted the benches in a biased manner to reach a pre-determined decision cannot take away such powers from the CJI.

The genesis of the power of the CJI to constitute benches resides under Article 145 of the Constitution. Article 145 confers power to the Supreme Court to make Rules for regulating the practice of the Supreme Court. In furtherance of this power, Supreme Court Rules, 2013 was enacted, wherein, Order VI, Rule 2 states that:

“(2) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.”

Therefore, the CJI is the master of the roster and has the authority to constitute constitutional benches.

Recently, in Shanti Bhushan v. Supreme Court of India [Writ Petition (Civil) No. 789 of 2018], the Supreme Court was tasked with determining whether the expression ‘Chief Justice’ under Order VI of the Supreme Court Rules should be interpreted to mean ‘Collegium’ of first five Judges of the Supreme Court. The petitioner had argued that in S. P. Gupta v. Union of India [(1981) Supp. SCC 87], Supreme Court Advocates-on-Record Association and Others v. Union of India [(1993) 4 SCC 441] and Special Reference No. 1 of 1998 [(1998) 7 SCC 739], which dealt with power of the CJI to recommend names for appointment as the Judges in the constitutional courts, it was held that the expression ‘Chief Justice’ has been interpreted to mean a ‘Collegium’ and same should be done when it comes to discharging of administrative duties by the CJI. However, the Court ruled that such an interpretation is totally impracticable as it would result in chaos and would negatively affect the day to day administrative functioning. Therefore, it was held that the CJI is the master of the roster and he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.

The petitioner had relied heavily on the case of Supreme Court Advocates-on-Record Association without appreciating the fact that the functions under consideration in the relied case and the instant case were completely different. In the relied case, it was held at ¶ 466 that:

“It has to be borne in mind that the principles of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity.”

Therefore, in the relied case, it was held that the power to undertake a constitutional activity, i.e. selection of judges for the constitutional courts under Article 124, should not vest in an individual. This matter is completely different from an administrative activity undertaken under the Supreme Court Rules, 2013. The Supreme Court in the Shanti Bhushan judgment [¶ 26, per Sikri, J.] expressed a similar view when it held that:

“The rationale provided in the context (of Article 124 of the Constitution) cannot be adopted while interpreting Article 145 of the Constitution, the purpose whereof is altogether different. … The kind of system which is devised for appointment of Judges cannot be replicated when it comes to the role of the Chief Justice as Master of Roster.”

Additionally, the standard for impartiality is not indifferent in both these scenarios. If the process of selection of judges is affected by even the slightest of bias, it may bear negative implications on the quality of the upcoming judgments of the Court. However, once a person has been impartially found suitable for the judicial post in the Supreme Court, he is to be treated as equal to the judges who are already holding similar posts. Therefore, the CJI may, at his discretion, allocate any matter to any judge. Here, I wish to state that the anticipation of bias in the CJI at the time of constituting benches to achieve favourable results is in itself dangerous. This might indicate that judges are not considered equals.   

Previously, the Court, in Asok Pande v. Supreme Court of India [Writ Petition (Civil) No. 147 of 2018 decided on April 11, 2018] had also rejected a suggestion to make it a rule that a three-judge Bench in the Court of the CJI must consist of the Chief Justice and his two senior-most colleagues alone while the Constitution Bench should consist of five senior-most judges. The reason being that there is no constitutional foundation for such a suggestion and seniority in terms of appointment has no bearing on which cases a judge should hear. The Court further said that:

“To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the Office.”

This reasoning of the Court furthers the principle that all the judges of the Supreme Court are equal and are vested with the with the same judicial power. Additionally, the Court has been clear in its expression when it said that there cannot be a presumption of mistrust in the institution of the CJI. The oath of the Office demands nothing less. [Asok Pande, ¶ 15].

There is another fact about the repeated presence of certain judges in the benches constituted by the then CJI, which has concerned certain people. I believe that there might be certain underlying reasons for constituting constitutional benches comprising of particular judges. It is an accepted fact that:

“Each ‘Chief Justice’ performs his role by consultation and consensus, after taking into account various factors including individual Judge’s interests and abilities, their specialization in a particular area, their capacity to handle particular type of cases and any other relevant considerations.” [Shanti Bhushan, ¶ 38, per Sikri, J.]

Furthermore, factually speaking, the praise that these latest decisions of the constitutional benches have gathered, allows us to happily concede discretion in favour of the CJI. I argue that this particular situation demands us to invoke the principle of consequentialism as the deontological requirements have already been satisfied by the aforesaid cases of the Supreme Court. Putting simply, as the Supreme Court has already affirmed the sole prerogative of the CJI to constitute the benches of the Court as constitutional, the only objection one might raise could be based on consequences of such practice. The judgements in these cases have been praised from four corners of the society. When we look at the consequences, it can be seen that the minority part of the latest judgments has often been the one to receive praise.

Also, we do not see that the Court is speaking in a single tone while delivering its opinions. This in itself evidences the fact that the then CJI did not wish to achieve pre-determined results but dynamicity in the judgments. Moreover, it is a fact that the dissents by Justice Chandrachud, J. in the Aadhaar Judgment and by Malhotra, J. in the Sabarimala Judgment are more celebrated than the majority opinions. To summarize my argument, I wish to present the following table showing the multiplicity of opinions that were expressed in the recent constitutional bench decisions.

Case Title

Judgment of the Court

Concurring Opinion(s)

Dissent Opinion

Justice K. S. Puttaswamy (Retd.) v. Union of India (Aadhaar Case)

A. K. Sikri, J.

Ashok Bhushan, J.

D. Y. Chandrachud, J.

Navtej Singh Johar v. Union of India (Section 377, IPC)

Dipak Misra, J.

R. F. Nariman, J.; D. Y. Chandrachud, J.; Indu Malhotra, J.


Indian Young Lawyers Association v. State of Kerala (Sabarimala Temple)

Dipak Misra, J.

R. F. Nariman, J.; D. Y. Chandrachud, J.

Indu Malhotra, J.

Joseph Shine v. Union of India (Adultery)

Dipak Misra, J.

R. F. Nariman, J.; D. Y. Chandrachud, J.; Indu Malhotra, J.


Public Interest Foundation v. Union of India (Criminalisation of Politics)

Dipak Misra, J.



Jarnail Singh v. Lachhmi Narain Gupta (Reservation in Promotion)

R. F. Nariman, J.




The foregoing discussion leaves us with a clear result. The CJI enjoys the prerogative to constitute benches for the reason for ensuring swiftness in the administration of the Court, which is a legitimate bargain as the selection of the judges of the Supreme Court has been rightly secured against any anticipated bias. Therefore, another way of understanding similar set of judges adjudicating constitutional matters could be that the then CJI had created such benches to achieve best results keeping into consideration the interests and qualities of particular judges. He might be wrong in his judgment about other judge’s qualities, but such an act cannot be deemed as wrong in law. One may feel that some bias lurks underneath here; however, I believe that this is the beauty of discretionary administrative powers, and it should not be hampered by any means. Therefore, when the established procedure is discretion or the deontological duties encompasses discretion, and the consequential analysis shows celebrated consequences, then there is no justification ascribe any kind of limitations on the degree of permissible oscillation of discretion.

(Anmol is a 3rd-year student at National Law University, Jodhpur. In particular, he finds his interest in the Indian Constitutional Law.)       

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