Holding

Mandamus cannot be issued to direct the Chief Justice of India or the Supreme Court to fix bench composition; bench constitution and case allocation remain the exclusive prerogative of the Chief Justice, and the petition is dismissed.

Summary

Asok Pandey, a member of the Bar, filed a writ petition under Article 32 seeking mandamus directing the Supreme Court to prescribe a fixed procedure for constituting benches—three‑judge benches to consist of the Chief Justice of India and the two senior‑most judges, and Constitution benches to consist of the five senior‑most judges—and to create separate divisions such as a Supreme Criminal Court. He also sought similar directions for the Allahabad High Court. The petition arose from contempt proceedings against him, wherein the High Court restrained his entry. The Court held that mandamus cannot be issued to compel a body vested with rule‑making power, that the constitution of benches and allocation of cases is the exclusive prerogative of the Chief Justice of India, and that seniority has no constitutional basis for bench composition. The Court further noted that challenges to High Court orders under Article 32 are impermissible and that the petitioner’s allegations against High Court judges were unwarranted. Consequently, the petition was dismissed.

Issues considered

The Court can issue a writ of mandamus under Article 32 to direct the Supreme Court to prescribe a specific procedure for constituting benches and allocating cases.
Whether seniority of judges can be a basis for determining the composition of three‑judge and Constitution benches.
Whether a petitioner can challenge a High Court contempt order and raise allegations against its judges through a writ petition under Article 32.
Whether the Supreme Court Rules can be compelled to incorporate the petitioner’s proposed bench‑composition provisions.

Legislation cited

Subjects

mandamusbench compositionChief Justice of IndiaseniorityArticle 32contempt of courtjudicial administrationSupreme Court RulesHigh Court

Judgment

[2018] 3 S.C.R. 337 337

ASOK PANDE A
v.
SUPREME COURT OF INDIA THR. ITS REGISTRAR AND
ORS.
(Writ Petition (Civil) No. 147 of 2018) B
APRIL 11, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India:
C
Arts. 32, 136, 145 – Power of CJI to constitute Benches and
allocate work to different Benches – Petitioner seeking mandamus
for evolution of “set procedure” for constituting Benches-three judge
Bench in the Court of Chief Justice to consist of Chief Justice and
two senior-most judges while a Constitution Bench to consist of
D
five senior-most judges; and allotment of cases to different Benches
in this Court – Held: Relief sought is misconceived – Mandamus
cannot be issued to direct a body or authority vested with a rule
making power to make rules or to make them in a particular manner
– Supreme Court has been authorised u/Art. 145 to frame rules of
procedure – Petitioner not entitled to seek a direction that Benches E
of this Court be constituted in a particular manner or, that there
should be separate divisions of this Court – In the allocation of
cases and the constitution of benches, the Chief Justice has an
exclusive prerogative – Further, seniority in terms of appointment
has no bearing on which cases a Judge should hear – Every Judge
F
appointed to this Court u/Art. 124 is invested with the equal duty of
adjudicating cases which come to the Court and are assigned by
the Chief Justice – In his capacity as a Judge, the Chief Justice is
primus inter pares: the first among equals – In the discharge of his
other functions, the Chief Justice of India occupies a position which
is sui generis – Art. 146 reaffirms the position of the Chief Justice G
of India as the head of the institution – As repository of constitutional
trust, the Chief Justice is an institution in himself – Thus, there cannot
be a presumption of mistrust.

H
337
338 SUPREME COURT REPORTS [2018] 3 S.C.R.

A Art.32 – Initiation of contempt proceedings against the petitioner,
whereby he was restrained from entering the High Court – Challenge
to, in a writ petition u/Art. 32 – Held: Legality of a judicial order
cannot be questioned in an original proceeding u/Art. 32 – If the
petitioner was aggrieved by a judicial order of the High Court,
remedies were available to him u/Art. 136 – Manner in which the
B
petitioner sought to cast aspersions on the bench of the High Court,
assigned with the hearing of the contempt proceedings against
petitioner, is unwarranted – Moreover, reckless allegations levelled
against judges of the High Court in a proceeding where correctness
of the orders passed by the High Court not in issue and necessary
C parties to that proceeding not before the court.
Contempt proceedings were initiated against the petitioner-
lawyer, by the Allahabad High Court for making allegations against
several High Court Judges. An order was passed restraining his
entry into the premises of the High Court. Aggrieved the
D petitioner, sought issuance of a writ of mandamus to the first
respondent-Supreme Court of India to evolve the set procedure
for constituting the benches and allotment of jurisdiction to
different benches in Supreme Court; and also sought issuance of
writ of mandamus to the second respondent-Allahabad High Court
to evolve set rules with respect to formation of benches and
E vesting of jurisdiction to them on the pattern of rules so framed
by the Supreme Court.
Dismissing the petition, the Court
HELD: 1.1 Disapproval is expressed of the manner in which
F the petitioner has sought to cast aspersions on the bench of the
Allahabad High Court which was assigned with the hearing of the
contempt proceedings against the petitioner. What the petitioner
has averred is not based or founded upon any judicial order. The
aspersions which he has cast on the judges of the High Court are
unwarranted. Significantly, the correctness of an order passed by
G the High Court in the contempt proceedings initiated against the
petitioner is not in question in the present proceedings. If the
petitioner was aggrieved by a judicial order of the High Court,
remedies were available to him under Article 136. As a member
of the Bar, the petitioner should know better than to question
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ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 339
REGISTRAR AND ORS.

the conduct of a judicial proceeding before the High Court in a A
writ petition under Article 32 of the Constitution. This is yet
another instance of reckless allegations being levelled against
judges of the High Court in a proceeding where the correctness
of the orders passed by the High Court is not in issue; necessary
parties to that proceeding are not before the court; and though
B
the legality of a judicial order cannot be questioned in an original
proceeding under Article 32. [Para 4] [343-H; 344-A-C]
1.2 In view of this binding elucidation of the authority of
the Chief Justice of India in *Campaign for Judicial Accountability
and Reforms v Union of India, the relief which the petitioner seeks
is manifestly misconceived. For one thing, it is a well settled C
principle that no mandamus can issue to direct a body or authority
which is vested with a rule making power to make rules or to
make them in a particular manner. The Supreme Court has been
authorised under Article 145 to frame rules of procedure. A
mandamus of the nature sought cannot be issued. Similarly, the D
petitioner is not entitled to seek a direction that Benches of this
Court should be constituted in a particular manner or, as he
seeks, that there should be separate divisions of this Court. The
former lies exclusively in the domain of the prerogative powers
of the Chief Justice. [Para 11] [350-C-E]
E
1.3 The relief sought is contrary to legal and constitutional
principle, there is a fundamental fallacy in the approach of the
petitioner, which must be set at rest. The petitioner seeks the
establishment of a binding precept under which a three judge
Bench in the Court of the Chief Justice must consist of the Chief
Justice and his two senior-most colleagues alone while the F
Constitution Bench should consist of five senior-most judges (or,
as he suggests, three ‘senior-most’ and two ‘junior-most’ judges).
There is no constitutional foundation on the basis of which such a
suggestion can be accepted. This would intrude into the exclusive
duty and authority of the Chief Justice to constitute benches and G
to allocate cases to them. Moreover, the petitioner seems to
harbour a misconception that certain categories of cases or certain
courts must consist only of the senior-most in terms of
appointment. Every Judge appointed to this Court under Article
124 of the Constitution is invested with the equal duty of
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340 SUPREME COURT REPORTS [2018] 3 S.C.R.

A adjudicating cases which come to the Court and are assigned by
the Chief Justice. Seniority in terms of appointment has no bearing
on which cases a Judge should hear. It is a settled position that a
judgment delivered by a Judge speaks for the court (except in
the case of a concurring or dissenting opinion). The Constitution
makes a stipulation in Article 124(3) for the appointment of
B
Judges of the Supreme Court from the High Courts, from the
Bar and from amongst distinguished jurists. Appointment to the
Supreme Court is conditioned upon the fulfilment of the
qualifications prescribed for the holding of that office under Article
124(3). Once appointed, every Judge of the Court is entitled to
C and in fact, duty bound, to hear such cases as are assigned by the
Chief Justice. Judges drawn from the High Courts are appointed
to this Court after long years of service. Members of the Bar
who are elevated to this Court similarly are possessed of wide
and diverse experience gathered during the course of the years
of practise at the Bar. To suggest that any Judge would be more
D
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
E assigned by the Chief Justice notwithstanding the fact that they
have fulfilled the qualifications mandated by the Constitution for
appointment to the office. [Para 12] [350-F-H; 351-A-E]
1.4 The submissions in regard to the constitution of
benches in the High Courts are, equally lacking in merit. The
F insinuations sought to be made against judges drawn from the
cadre of the district judiciary are disapproved. The Constitution
has made specific provisions in Article 217(2) for the appointment
of judges to the High Court. Judges of the High Court drawn
from the Bar or from those who have held judicial office for at
least ten years discharge the same functions as judges of the
G court upon their appointment under Article 217. To suggest that
there is a distinction between the two is contrary to constitutional
tenets. [Para 13] [351-E-G]
1.5 In his capacity as a Judge, the Chief Justice is primus
inter pares: the first among equals. In the discharge of his other
H
ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 341
REGISTRAR AND ORS.

functions, the Chief Justice of India occupies a position which is A
sui generis. Article 124(1) postulates that the Supreme Court of
India shall consist of a Chief Justice of India and other Judges.
Article 146 reaffirms the position of the Chief Justice of India as
the head of the institution. From an institutional perspective the
Chief Justice is placed at the helm of the Supreme Court. In the
B
allocation of cases and the constitution of benches the Chief
Justice has an exclusive prerogative. As a repository of
constitutional trust, the Chief Justice is an institution in himself.
The authority which is conferred upon the Chief Justice, it must
be remembered, is vested in a high constitutional functionary.
The authority is entrusted to the Chief Justice because such an C
entrustment of functions is necessary for the efficient transaction
of the administrative and judicial work of the Court. The ultimate
purpose behind the entrustment of authority to the Chief Justice
is to ensure that the Supreme Court is able to fulfil and discharge
the constitutional obligations which govern and provide the
D
rationale for its existence. The entrustment of functions to the
Chief Justice as the head of the institution is with the purpose of
securing the position of the Supreme Court as an independent
safeguard for the preservation of personal liberty. There cannot
be a presumption of mistrust. The oath of office demands nothing
less. [Para 15] [353-A-E] E
1.6 Some of the averments made by the petitioner are
scandalous. However, it is appropriate to allow the matter to rest
with a caution that the petitioner must be more responsible for
the manner in which he seeks to draft pleadings in future filings.
[Para 16] [354-A] F
State of Rajasthan v Prakash Chand (1998) 1 SCC 1;
*Campaign for Judicial Accountability and Reforms v
Union of India (2018) 1 SCC 196 – referred to.
Case Law Reference
G
(1998) 1 SCC 1 referred to Para 9
(2018) 1 SCC 196 referred to Para 10
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
147 of 2018.
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342 SUPREME COURT REPORTS [2018] 3 S.C.R.

A Under Article 32 of the Constitution of India.
Petitioner-In-Person.
The Judgment of the Court was delivered by
DR. D. Y. CHANDRACHUD, J. 1. The petitioner, who is a
B member of the Bar, has instituted these proceedings under Article 32 of
the Constitution, claiming to be “a public spirited person”. He states that
he is a “scholar in the field of the Constitution” and that he has filed
nearly two hundred petitions in the public interest before the Allahabad
High Court, Gujarat High Court and in this Court as well. The reliefs
which he seeks are as regards the constitution of Benches of this Court
C and the Allahabad High Court. What is sought in these proceedings is
depicted in the two prayers for relief which are extracted below:
“(a) to issue a writ of mandamus to the first respondent (Supreme
Court of India) to evolve the set Procedure for constituting the
benches and allotment of jurisdiction to different benches in
D Supreme Court. The Petitioner seeks mandamus to the first
respondents to have a specific rule in Supreme Court Rules that
the three judges bench in Chief Justice court shall consist of the
chief justice and two senior most judges and the Constitutional
bench shall consist of five senior most judges or three senior most
E Judges and two junior most judges. The Petitioner also seeks a
writ of mandamus to the first respondent to constitute :
Supreme Criminal Court
Supreme PIL Court
Supreme Tax Court
F
Supreme Service Court
Supreme Land Dispute Court
Supreme Misc. Matter Court…. Etc.

G b. The Petitioner also seeks writ of mandamus to the second
respondent i.e. Allahabad High Court to evolve set rules with
respect to formation of benches and vesting of jurisdiction to them
on the pattern of rules so framed by the Supreme Court. The rule
should also contain that the bench of Advocate judges will be

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ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 343
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constituted with Advocate judges and the bench of service judges A
coming from eligibility criteria number one of article 217 (3) of
Constitution with the judges coming from District judiciary not
with Advocate judges.”
2. The petitioner has a litany of grievances, many of which are
personal to him. The averments contained in the petition indicate that a B
proceeding was initiated against the petitioner under the Contempt of
Courts Act 1971. The petitioner seems to have a grievance with an
order which was passed restraining his entry into the premises of the
High Court. The nature of his allegations is evinced in the following
extract:
C
“For prosecuting the Petitioner under the Contempt of Courts Act
on the charge of writing a letter to the Chief Justice against the
Misbehaviour of a judge, a Chief Justice ordered the listing of my
case before the bench headed by Sri Sudhir Agrawal J. And he
sitting with a judge coming from district judiciary convicted and
sentenced me. He sitting with an advocate judges threatened me D
on the very first date of hearing to restrain my entry in high court
except on the date fixed in the contempt case but as the second
judge was not agree and so he could not pass the order but as the
judge sitting on that also not agree and the order of suspension
from practice could not be passed and so he managed the formation E
of bench with a third judge on the next date. He was a judge
coming from district court. He agreed for passing the order of
suspension and so the Petitioner was suspended from practice
and his entry in the high court was banned. This happened as in
place of the regular bench assigned the matters of criminal
contempt as per the prevailing roaster, the chief justice nominated F
a bench headed by Sri Sudhir Agrawal.”
3. The petitioner has then proffered his suggestions about how
the benches of this Court should be constituted. He suggests that the
same principle should be followed in the High Court.
G
4. We must, at the outset, express our disapproval of the manner
in which the petitioner has sought to cast aspersions on the bench of the
Allahabad High Court which was assigned with the hearing of the
contempt proceedings against the petitioner. What the petitioner has

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344 SUPREME COURT REPORTS [2018] 3 S.C.R.

A averred is not based or founded upon any judicial order. The aspersions
which he has cast on the judges of the High Court are unwarranted.
Significantly, the correctness of an order passed by the High Court in
the contempt proceedings initiated against the petitioner is not in question
in the present proceedings. If the petitioner was aggrieved by a judicial
order of the High Court, remedies were available to him under Article
B
136. As a member of the Bar, the petitioner should know better than to
question the conduct of a judicial proceeding before the High Court in a
writ petition under Article 32 of the Constitution. This is yet another
instance of reckless allegations being levelled against judges of the High
Court in a proceeding where the correctness of the orders passed by the
C High Court is not in issue; necessary parties to that proceeding are not
before the court; and though the legality of a judicial order cannot be
questioned in an original proceeding under Article 32.
5. We would now deal with the relief which has been sought in
terms of prayer (a). The petitioner seeks the evolution of a “set procedure”
D for constituting Benches and allotment of cases to different Benches in
this Court. Second, as part of the same prayer the petitioner seeks a
Mandamus for the making of a rule, in the Rules of Procedure of this
Court, to the effect that a three judge Bench in the Court of the Chief
Justice should consist of the Chief Justice and the two senior-most judges
while a Constitution Bench should consist of five senior-most judges (or
E three ‘senior-most’ judges and two ‘junior-most’ judges). Third, the
petitioner seeks a bifurcation of this court into what he describes as a
“Supreme criminal court”, with similar divisions to hear PIL, tax, service,
land disputes and miscellaneous matters (etc.).
6. The Supreme Court Rules, 2013 have been notified with the
F approval of the President in pursuance of the provisions of Article 145
of the Constitution. Article 145 reads thus:
“145. (1) Subject to the provisions of any law made by Parliament,
the Supreme Court may from time to time, with the approval of
the President, make rules for regulating generally the practice
G and procedure of the Court including—
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters
pertaining to appeals including the time within which appeals to
the Court are to be entered;
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(c) rules as to the proceedings in the Court for the enforcement A
of any of the rights conferred by Part III;
1[(cc) rules as to the proceedings in the Court
under 2[article 139A];]
(d) rules as to the entertainment of appeals under sub-clause (c) B
of clause (1) of article 134;
(e) rules as to the conditions subject to which any judgment
pronounced or order made by the Court may be reviewed and the
procedure for such review including the time within which
applications to the Court for such review are to be entered; C
(f) rules as to the costs of and incidental to any proceedings in the
Court and as to the fees to be charged in respect of proceedings
therein;
(g) rules as to the granting of bail;
D
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal
which appears to the Court to be frivolous or vexatious or brought
for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) E
of article 317.
Rules of Court, etc.
(2) Subject to the provisions of clause (3), rules made under this
article may fix the minimum number of Judges who are to sit for
any purpose, and may provide for the powers of single Judges F
and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose
of deciding any case involving a substantial question of law as to
the interpretation of this Constitution or for the purpose of hearing
any reference under article 143 shall be five: G
Provided that, where the Court hearing an appeal under any of
the provisions of this Chapter other than article 132 consists of
less than five Judges and in the course of the hearing of the appeal
the Court is satisfied that the appeal involves a substantial question
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346 SUPREME COURT REPORTS [2018] 3 S.C.R.

A of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the appeal, such Court
shall refer the question for opinion to a Court constituted as required
by this clause for the purpose of deciding any case involving such
a question and shall on receipt of the opinion dispose of the appeal
in conformity with such opinion.
B
(4) No judgment shall be delivered by the Supreme Court save in
open Court, and no report shall be made under article 143 save in
accordance with an opinion also delivered in open Court.
(5) No judgment and no such opinion shall be delivered by the
C Supreme Court save with the concurrence of a majority of the
Judges present at the hearing of the case, but nothing in this clause
shall be deemed to prevent a Judge who does not concur from
delivering a dissenting judgment or opinion.”
7. Order VI of the Supreme Court Rules 2013 deals with the
D constitution of Division Courts and powers of a Single Judge. Rules 1, 2
and 4 provide thus:
“1. Subject to the other provisions of these rules every cause,
appeal or matter shall be heard by a Bench consisting of not less
than two Judges nominated by the Chief Justice.
E 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.
F …
4. If a Bench of less than three Judges, hearing a cause, appeal or
matter, is of the opinion that the accused should be sentenced to
death it shall refer the matter to the Chief Justice who shall
thereupon constitute a Bench of not less than three Judges for
hearing it.”
G
Rule 1 indicates that it is the Chief Justice who is to nominate the Judges
who would constitute a Bench to hear a cause, appeal or matter. Where
a reference has been made to a larger Bench, the Bench making the
reference is required to refer the matter to the Chief Justice who will
constitute a Bench.
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ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 347
REGISTRAR AND ORS. [DR. D. Y. CHANDRACHUD, J.]

8. Order XXXVIII of the Supreme Court Rules 2013 deals with A
applications for enforcement of fundamental rights under Article 32.
Rule (1) of Order XXXVIII provides thus:
“(1) Every petition under article 32 of the Constitution shall be in
writing and shall be heard by a Division Court of not less than five
Judges provided that a petition which does not raise a substantial B
question of law as to the interpretation of the Constitution may be
heard and decided by a Division Court of less than five Judges,
and, during vacation, by the Vacation Judge sitting singly.
(2) All interlocutory and miscellaneous applications connected with
a petition under article 32 of the Constitution, may be heard and C
decided by a Division Court of less than five Judges, and, during
vacation, by the Vacation Judge sitting singly, notwithstanding that
in the petition a substantial question of law as to the interpretation
of the Constitution is raised.”
Rules 12 deals with public interest litigation. Rule 12 is extracted D
below:
“12. (1) A public Interest Litigation Petition may commence in
any of the following manners:
(a) as a suo moto petition in pursuance of the order of the Chief
Justice or Judge of the Court. E
(b) in pursuance of an order of the Chief Justice or a Judge
nominated by the Chief Justice on a letter or representation.
(c) by an order of the Court to treat a petition as a Public Interest
Litigation Petition.
F
(d) by presentation of a petition in the Court.
(2) In a petition filed under clause (d) of sub-rule (1) the petitioner
shall
(i) disclose:
G
(a) his full name, complete postal address, e-mail address, phone
number, proof regarding personal identification, occupation and
annual income, PAN number and National Unique Identity Card
number, if any;

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348 SUPREME COURT REPORTS [2018] 3 S.C.R.

A (b) the facts constituting the cause of action;
(c) the nature of injury caused or likely to be caused to the public;
(d) the nature and extent of personal interest, if any, of the petitioner
(s);
B (e) details regarding any civil, criminal or revenue litigation,
involving the petitioner or any of the petitioners, which has or
could have a legal nexus with the issue (s) involved in the Public
Interest Litigation; and
(f) whether the concerned Government Authority was moved for
C relief (s) sought in the petition and if so, with what result.
(ii) file and affidavit stating that there is no personal gain, private
motive or oblique reason in filing the Public Interest Litigation.
(3) The Court may impose exemplary costs on the petitioner (s) if
it finds that the petition was frivolous or instituted with oblique or
D mala fide motive or lacks bona fides.”
9. The position of the Chief Justice of a High Court was elucidated
in a judgment of a three judge Bench of this Court in State of Rajasthan
v Prakash Chand1. During the course of the judgment the following
broad conclusions were formulated in regard to the position of the Chief
E Justice:
“(1) That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the
first amongst the equals.
(2) That the Chief Justice is the Master of the Roster.
F He alone has the prerogative to constitute Benches of the court
and allocate cases to the Benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to
them by the Chief Justice or under his directions.

G (4) That till any determination made by the Chief Justice lasts, no
Judge who is to sit singly can sit in a Division Bench and no Division
Bench can be split up by the Judges constituting the Bench
themselves and one or both the Judges constituting such Bench
sit singly and take up any other kind of judicial business not
1
(1998) 1 SCC 1
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otherwise assigned to them by or under the directions of the Chief A
Justice.
(5) That the Chief Justice can take congnizance of an application
laid before him under Rule 55 (supra) and refer a case to the
larger bench for its disposal and he can exercise this jurisdiction
even in relation to a part-heard case. B
(6) That the puisne Judges cannot “pick and choose” any case
pending in the High Court and assign the same to himself or
themselves for disposal without appropriate orders of the Chief
Justice.
(7) That no Judge or Judges can give directions to the Registry C
for listing any case before him or them which runs counter to the
directions given by the Chief Justice.”
10. Recently, a Constitution Bench of this Court in Campaign for
Judicial Accountability and Reforms v Union of India2 held that the
principle which was noticed and recognised in the decision of this court D
in Prakash Chand (supra) in relation to the jurisdiction and authority of
the Chief Justice of the High Court “must apply proprio vigore as regards
the power of the Chief Justice of India”. The position of the Chief Justice
was reiterated with the following observations:
“The aforesaid position though stated as regards the High Court, E
we are absolutely certain that the said principle is applicable to
the Supreme Court. We are disposed to think so. Unless such a
position is clearly stated, there will be utter confusion. Be it noted,
this has been also the convention of this Court, and the convention
has been so because of the law. We have to make it clear without F
any kind of hesitation that the convention is followed because of
the principles of law and because of judicial discipline and decorum.
Once the Chief Justice is stated to be the Master of the Roster,
he alone has the prerogative to constitute Benches. Needless to
say, neither a two-Judge Bench nor a three-Judge Bench can
allocate the matter to themselves or direct the composition for G
constitution of a Bench. To elaborate, there cannot be any direction
to the Chief Justice of India as to who shall be sitting on the
Bench or who shall take up the matter as that touches the
2
(2018)1 SCC 196
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350 SUPREME COURT REPORTS [2018] 3 S.C.R.

A composition of the Bench. We reiterate such an order cannot be
passed. It is not countenanced in law and not permissible.
An institution has to function within certain parameters and that is
why there are precedents, rules and conventions. As far as the
composition of Benches is concerned, we accept the principles
B stated in Prakash Chand [State of Rajasthan v. Prakash
Chand, (1998) 1 SCC 1] , which were stated in the context of the
High Court, and clearly state that the same shall squarely apply to
the Supreme Court and there cannot be any kind of command or
order directing the Chief Justice of India to constitute a particular
Bench.”
C
11. In view of this binding elucidation of the authority of the Chief
Justice of India, the relief which the petitioner seeks is manifestly
misconceived. For one thing, it is a well settled principle that no mandamus
can issue to direct a body or authority which is vested with a rule making
power to make rules or to make them in a particular manner. The Supreme
D Court has been authorised under Article 145 to frame rules of procedure.
A mandamus of the nature sought cannot be issued. Similarly, the petitioner
is not entitled to seek a direction that Benches of this Court should be
constituted in a particular manner or, as he seeks, that there should be
separate divisions of this Court. The former lies exclusively in the domain
E of the prerogative powers of the Chief Justice.
12. Quite apart from the fact that the relief sought is contrary to
legal and constitutional principle, there is a fundamental fallacy in the
approach of the petitioner, which must be set at rest. The petitioner
seeks the establishment of a binding precept under which a three judge
F Bench in the Court of the Chief Justice must consist of the Chief Justice
and his two senior-most colleagues alone while the Constitution Bench
should consist of five senior-most judges (or, as he suggests, three ‘senior-
most’ and two ‘junior-most’ judges). There is no constitutional foundation
on the basis of which such a suggestion can be accepted. For one thing,
as we have noticed earlier, this would intrude into the exclusive duty and
G authority of the Chief Justice to constitute benches and to allocate cases
to them. Moreover, the petitioner seems to harbour a misconception that
certain categories of cases or certain courts must consist only of the
senior-most in terms of appointment. Every Judge appointed to this Court
under Article 124 of the Constitution is invested with the equal duty of
H
ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 351
REGISTRAR AND ORS. [DR. D. Y. CHANDRACHUD, J.]

adjudicating cases which come to the Court and are assigned by the A
Chief Justice. Seniority in terms of appointment has no bearing on which
cases a Judge should hear. It is a settled position that a judgment delivered
by a Judge speaks for the court (except in the case of a concurring or
dissenting opinion). The Constitution makes a stipulation in Article 124(3)
for the appointment of Judges of the Supreme Court from the High
B
Courts, from the Bar and from amongst distinguished jurists. Appointment
to the Supreme Court is conditioned upon the fulfilment of the
qualifications prescribed for the holding of that office under Article 124(3).
Once appointed, every Judge of the Court is entitled to and in fact, duty
bound, to hear such cases as are assigned by the Chief Justice. Judges
drawn from the High Courts are appointed to this Court after long years C
of service. Members of the Bar who are elevated to this Court similarly
are possessed of wide and diverse experience gathered during the course
of the years of practise at the Bar. 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
D
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.
13. The submissions which have been made by the petitioner in E
regard to the constitution of benches in the High Courts are, in view of
the above discussion, equally lacking in merit. We emphatically disapprove
of the insinuations sought to be made against judges drawn from the
cadre of the district judiciary. The Constitution has made specific
provisions in Article 217(2) for the appointment of judges to the High F
Court. Judges of the High Court drawn from the Bar or from those who
have held judicial office for at least ten years discharge the same functions
as judges of the court upon their appointment under Article 217. To
suggest that there is a distinction between the two is contrary to
constitutional tenets.
G
14. The Chartered High Courts of Allahabad, Bombay, Calcutta
and Madras have a long history of over a hundred and fifty years. Each
of them has marked its sesquicentennial. Many High Courts are not far
behind in vintage. Some are of a recent origin. Over the course of their
judicial history, High Courts have evolved conventions in matters
H
352 SUPREME COURT REPORTS [2018] 3 S.C.R.

A governing practice and procedure. These conventions provide guidance
to the Chief Justice in the allocation of work, including in the constitution
of benches. The High Courts periodically publish a roster of work under
the authority of the Chief Justice. The roster indicates the constitution of
Benches, Division and Single. The roster will indicate the subject matter
of the cases assigned to each bench. Different High Courts have their
B
own traditions in regard to the period for which the published roster will
continue, until a fresh roster is notified. Individual judges have their own
strengths in terms of specialisation. The Chief Justice of the High Court
has to bear in mind the area of specialisation of each judge, while deciding
upon the allocation of work. However, specialisation is one of several
C aspects which weigh with the Chief Justice. A newly appointed judge
may be rotated in a variety of assignments to enable the judge to acquire
expertise in diverse branches of law. Together with the need for
specialisation, there is a need for judges to have a broad-based
understanding of diverse areas of law. In deciding upon the allocation of
work and the constitution of benches, Chief Justices have to determine
D
the number of benches which need to be assigned to a particular subject
matter keeping in view the inflow of work and arrears. The Chief Justice
of the High Court will have regard to factors such as the pendency of
cases in a given area, the need to dispose of the oldest cases, prioritising
criminal cases where the liberty of the subject is involved and the overall
E strength, in terms of numbers, of the court. Different High Courts have
assigned priorities to certain categories of cases such as those involving
senior citizens, convicts who are in jail and women litigants. These
priorities are considered while preparing the roster. Impending retirements
have to be borne in mind since the assignment given to a judge who is
due to demit office would have to be entrusted to another Bench when
F
the vacancy arises. These are some of the considerations which are
borne in mind. The Chief Justice is guided by the need to ensure the
orderly functioning of the court and the expeditious disposal of cases.
The publication of the roster on the websites of the High Courts provides
notice to litigants and lawyers about the distribution of judicial work under
G the authority of the Chief Justice. This Court was constituted in 1950. In
the preparation of the roster and in the distribution of judicial work, some
of the conventions which are adopted in the High Courts are also relevant,
subject to modifications having regard to institutional requirements.
15. Underlying the submission that the constitution of Benches
H and the allocation of cases by the Chief Justice must be regulated by a
ASOK PANDE v. SUPREME COURT OF INDIA THR. ITS 353
REGISTRAR AND ORS. [DR. D. Y. CHANDRACHUD, J.]

procedure cast in iron is the apprehension that absent such a procedure A
the power will be exercised arbitrarily. In his capacity as a Judge, the
Chief Justice is primus inter pares: the first among equals. In the
discharge of his other functions, the Chief Justice of India occupies a
position which is sui generis. Article 124(1) postulates that the Supreme
Court of India shall consist of a Chief Justice of India and other Judges.
B
Article 1463 reaffirms the position of the Chief Justice of India as the
head of the institution. From an institutional perspective the Chief Justice
is placed at the helm of the Supreme Court. In the allocation of cases
and the constitution of benches the Chief Justice has an exclusive
prerogative. As a repository of constitutional trust, the Chief Justice is
an institution in himself. The authority which is conferred upon the Chief C
Justice, it must be remembered, is vested in a high constitutional
functionary. The authority is entrusted to the Chief Justice because such
an entrustment of functions is necessary for the efficient transaction of
the administrative and judicial work of the Court. The ultimate purpose
behind the entrustment of authority to the Chief Justice is to ensure that
D
the Supreme Court is able to fulfil and discharge the constitutional
obligations which govern and provide the rationale for its existence. The
entrustment of functions to the Chief Justice as the head of the institution,
is with the purpose of securing the position of the Supreme Court as an
independent safeguard for the preservation of personal liberty. There
cannot be a presumption of mistrust. The oath of office demands nothing E
less.
3
146. (1) Appointments of officers and servants of the Supreme Court shall be made
by the Chief Justice of India or such other Judge or officer of the Court as he may
direct:
Provided that the President may by rule require that in such cases as may be specified
in the rule, no person not already attached to the Court shall be appointed to any office F
connected with the Court, save after consultation with the Union Public Service
Commission.
(2) Subject to the provisions of any law made by Parliament, the conditions of service
of officers and servants of the Supreme Court shall be such as may be prescribed by
rules made by the Chief Justice of India or by some other Judge or officer of the Court
authorized by the Chief Justice of India to make rules for the purpose: G
Provided that the rules made under this clause shall, so far as they relate to salaries,
allowances leave or pensions, require the approval of the President.
(3) The administrative expenses of the Supreme Court, including all salaries, allowances
and pensions payable to or in respect of the officers and servants of the Court, shall be
charged upon the Consolidated Fund of India, and any fees or other moneys taken by
the Court shall form part of that Fund. H
354 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 16. Some of the averments which have been made by the petitioner
are scandalous. However, we have considered it appropriate to allow
the matter to rest with a caution that the petitioner must be more responsible
for the manner in which he seeks to draft pleadings in future filings.
17. For the above reasons, we find no merit in the petition. The
B writ petition is, accordingly, dismissed.

Nidhi Jain Petition dismissed.

C

D

E

F

G

H