Master of the Roster: Securing Process Legitimacy of the Supreme Court

Let’s try and make sense of Justice Lalit’s rostering of judges in Table 1. The Supreme Court had 30 judges at the time. Each of them sat on at least one Constitution Bench. Each of the six senior-most judges—by ‘rank seniority’—led a Constitution Bench. Rank seniority refers to the length of continuous service of an employee. A judge who is younger in age will be considered ‘senior’ to a judge who is older in age  if they have been appointed earlier than the older judge. 

Table 1 confirms that two factors drive the rostering of Justice Lalit’s benches: (a) the six senior-most judges will each lead a bench; and (b) all judges will get a chance to sit on a bench. So, the seventh senior-most judge will join Bench 1 led by Chief Justice Lalit and the eighth senior-most judge will join Bench 2 led by Justice Chandrachud, and so on. We may call this model of rostering the ‘Seniority Pools’ method. 

In Table 2, we have rearranged the judges according to their rank seniority to make this point clearer. Table 1 more or less tracks with Table 2, in the sense that each bench constituted by Justice Lalit has a defensible distribution of senior and junior judges. Such an approach refutes allegations that the CJI may appoint junior judges to Constitution Benches to shape judicial outcomes. (Notably, CJI Lalit was in the minority in the EWS Reservation case.) 

Having said that, Table 1 does not exactly correspond with Table 2. This makes it clear that Constitution Benches were not allocated exclusively on the basis of rank seniority. There are instances where the composition of benches does not strictly adhere to the distribution in Table 2, suggesting that CJI Lalit exercised discretion in allocation. For instance, Justice Ramasubramanian (Pool 3) ideally should have been the third senior-most judge on a bench. Instead, he was the fourth senior-most on the bench led by Justice Abdul Nazeer (Entries 9 to 11 in Table 1). Other judges who were reshuffled in a similar way are marked in bold in Table 2. This method allows the CJI to exercise some discretion while constituting benches according to the principle of rank seniority.

While it appears that allocation may be explained through seniority pools, there is little clarity on how specific cases are allotted to these Constitution Benches. We now turn to review the composition of Constitution Benches under CJI Chandrachud who assumed office in November 2022. 

Unpacking CJI D.Y. Chandrachud’s judicial allocation 

CJI Chandrachud promptly built on CJI Lalit’s initiative to constitute several Constitution Benches. This was a relief for court observers, as the administrative initiatives of a CJI have been rolled back by successors in the recent past. 

From March 2023 to May 2024, the Supreme Court heard 18 fresh Constitution Bench cases: 11 were five-judge benches (Table 3); four were seven-judge benches (Table 4); and three were nine-judge benches (Table 5). 

A cursory review of Tables 3, 4 and 5 confirms that CJI Chandrachud did not adopt the same Seniority Pools model developed by CJI Lalit. Notably, CJI Chandrachud led all of these Constitution Benches. In Table 6 below, before examining possible rationales for the rostering in this period, we list the number of times a judge was on a Constitution Bench in CJI Chandrachud’s tenure.

In Table 6, the first 18 judges up to and including Justice Narasimha include the 16 senior sitting judges named in the Judges Roster and Justices S.R. Bhat and S.K. Kaul, who retired in October and December 2023 respectively***. The judges starting from Justice Pardiwala and up to Justice Varale are not named in the subject roster—they may be classified as junior judges. The judges starting from and including Justice Murari are those who retired before October 2023. 

We will now consider how Chief Justice Chandrachud’s rostering measures up against the following three rationales: seniority, subject matter, future institutional role. 

Composition based on seniority 

Apart from the fact the CJI has led each of the 18 benches, we find no clear pattern. 

The two nine-judge benches dealing with the taxation of mines and minerals, and the state government’s power to regulate industrial alcohols, had more junior judges (5) than senior judges (4). The bench determining the nature of private property had six junior judges and three senior judges. Additionally, the senior judges allocated were not among the senior-most. 

Yet, the composition of the three nine-judge benches suggests that the selection tracks the Seniority Pools approach. Two new judges who had not been on a Constitution Bench since CJI Chandrachud assumed office in November 2022 were also included. Additionally, relatively recent appointees got a chance to sit on the benches. But these nine-judge cases had more or less the same bench composition, leaving little room for newer judges. Moreover, judges who had consistently sat on five-judge bench matters were also included on the nine-judge benches. 

In the seven-judge bench in the Aligarh Muslim University (AMU) Minority Status case, four out of seven were junior judges. The seven-judge bench determining the validity of sub-classification within Scheduled Caste and Scheduled Tribe communities had four senior judges out of seven. The seven-judge bench determining the validity of an unstamped arbitration agreement had five-senior most judges on the bench. Taken together, these three cases do not establish a clear pattern. 

We extended our analysis of Seniority Pools to the five-judge Constitution Bench cases. At the outset, we see that the benches in three cases do not follow the Seniority Pools pattern of picking judges of different levels of seniority. The three cases are: the abrogation of Article 370, the plea for marriage equality, and the validity of electoral bonds. 

For some of the other matters, we found that the Chief’s selection tracks the broader Seniority Pools groupings but his picks were restricted to a specific set of judges. Just twelve judges (out of 30-plus, at various times) got a chance to sit on more than one of the 11 five-judge benches. Four judges sat on five or more of the 11 benches: CJI Chandrachud (all 11), Justice Misra (9), Justice Pardiwala (6), Justice Narasimha (5).

As the Seniority Pools model was not strictly followed, we found that five out of the 11 matters had three or more junior judges. 

CJI Chandrachud’s allocation for some of the five and nine-judge bench cases tracked the Seniority Pools groupings, but it was not a true expression of the Seniority Pools model since the cases were not equally distributed among the judges of the Court. 

In the next section, we explore whether the allocation of cases maps onto the subject matter expertise of particular judges. 

Subject-matter expertise 

Judges are not elevated to the Indian Supreme Court explicitly on the basis of their expertise in a field. All judges are assumed to be generalists and expected to adjudicate on all types of cases. But the Judges Roster assigns cases of a particular type to a limited set of judges. Assuming the judges are experts in the subject matter they have been assigned, we can analyse whether expertise has been taken into account. 

In the recent nine-judge bench cases, the Supreme Court looked into the state government’s power to tax mines and minerals. The Judges Roster at the time assigned the subject category of “Mines, Minerals and Mining Leases” to CJI Chandrachud, Justice Sanjiv Khanna and Justice Oka. However, Justice Khanna was not a part of the nine-judge bench. 

The same bench heard a case on a state government’s power to regulate industrial alcohol. According to the Judges Roster, Chief Justice Chandrachud, Justice Bela Trivedi and Justice P.S. Narasimha have been assigned matters related to “Liquor Privileges, licences, distilleries and breweries”. However, neither Justice Trivedi nor Justice Narasimha were on the nine-judge bench hearing the industrial alcohol case. 

According to the Roster published on 14 July 2023, matters pertaining to arbitration were assigned to CJI Chandrachud, Justices S.K. Kaul, Sanjiv Khanna, S.R. Bhat, and A.S. Oka. Yet, the seven-judge bench determining the validity of an unstamped arbitration agreement did not include Justices Bhat and Oka. These instances indicate that subject matter expertise may not be a factor in deciding the composition of at least some Constitution Benches. 

Further, the subject matters of some Constitution Bench cases are not reflected in the Roster. Additionally, the subject that a matter falls under might be indeterminate in some instances. For instance, which subject or theme did the Aligarh Muslim University case fall under? Would the case on sub-classification have fallen under the “social justice matters” category or some other category? Moreover, junior judges are not listed in the Judges Roster. 

For all these reasons, it is difficult to make conclusive claims on subject matter expertise being a factor influencing allocation.

Future institutional role of a judge

Lastly, we test whether CJI Chandrachud’s approach factors whether a judge will be a future CJI or has an extended tenure in the Supreme Court. Our assumption is that, from the point of view of institutional continuity and memory, the longer a judge’s expected tenure, the more Constitution Bench cases they will participate in. The table below lists the next eight CJIs and the number of Constitution Benches they have sat on so far in CJI Chandrachud’s tenure.

*The Roster was updated on 29 July 2024, following the retirement of Justices Aniruddha Bose and A.S. Bopanna. That edition of the Roster contained the names of Justices Sudhanshu Dhulia and Dipankar Datta, who were not among the 16 senior-most judges at the time. Justice Pardiwala, who was the 15th senior-most, was also not on the Roster.

**Many of these cases were heard and decided after CJI Lalit retired in November 2022. The bench composition in the cases were determined by CJI Lalit and were not changed after he retired.

***We referred to the Judges Roster that was active from 2 January 2024 to 29 July 2024.