Senior Supreme Court advocate Dushyant Dave on Wednesday wrote to Chief Justice of India D.Y. Chandrachud to voice his anguish over the transfer of cases from benches originally hearing them to others, in “disregard” of the court’s own rules.

In a letter addressed to the CJI, with copies marked to all judges of the Supreme Court, Dave said: “It would not be out of place to mention that these matters include some sensitive matters involving human rights, freedom of speech, democracy, and functioning of statutory and constitutional institutions.”

The senior lawyer regretted that he had been forced to write the open letter because attempts by “some of us” to meet the Chief Justice had not yielded results despite an appointment being sought months ago by a “senior and respected colleague”.

Dave’s letter comes a day after Justice Sanjay Kishan Kaul said in the open court: “Some things are best left unsaid.” The country’s second seniormost judge made the statement on finding out that three PILs for contempt proceedings against the Centre that he had directed to be listed for hearing on Tuesday had been dropped without his knowledge. “I am sure the CJI is aware of it,” he had said.

The Chief Justice, as the administrative head of the court, is the “master of roster” and the power to allocate benches and cases to different judges vests with him.

The bench led by Justice Kaul had at earlier hearings of the three PILs come
down heavily on the Centre for selectively clearing appointments and transfers of judges — allowing some while sitting on others — in violation of procedure. The court will soon go into vacation and Justice Kaul will retire before it reopens.

Earlier, on January 12, 2018, four seniormost judges led by Justice J. Chelameshwar had publicly accused then CJI Dipak Mishra of bypassing senior judges and allocating important and sensitive cases to his preferred judges though they were junior.

Dave’s letter, addressed to Chandrachud as “master of the roster”, noted that the Chief Justice alone had the “prerogative to constitute bench and allocate cases to the benches so constituted”.

However, the senior advocate who had also been president of the Supreme Court Bar Association (SCBA), quoted the Supreme Court Rules, 2013, under Order 3, Rule 2, to argue that a “roster once prepared under your direction... is final”.

The senior advocate said: “Once the case has been listed or notice has been issued or has been dismissed or disposed of or has been heard in part at admission hearing stage, the case thereafter can only be listed before the bench of first coram and none other.”

In case the coram as per roster is available, the Chief Justice cannot take away any case before the available coram and place it before another, Dave argued.

“Yet, I have personally come across a number of cases listed before various Hon’ble Benches upon first listing and/ or in which notice have been issued, being taken away from those Hon’ble Benches and listed before other Hon’ble Benches. Despite first coram being available, the matters are being listed before Hon’ble Benches in which second coram presides. Matters listed before Court No. 2, 4, 6, 7, amongst others, have been shifted out and listed before other Hon’ble Benches in clear disregard of the Rules, the Handbook on Practice and Office Procedure referred above and established Practice and Convention,” he wrote.

“Curiously, the seniority of the first coram is also being ignored in doing so,” Dave said. “It would not be proper for me to enumerate these matters as many of them are pending,” he added.

Dave wrote that on Justice Chandrachud’s appointment as Chief Justice, there was hope among citizens that the Supreme Court would rise to greater heights, “the march towards which has somehow paused for some time earlier. The scars caused on account of such improprieties in the past few years on justice delivery have not healed as yet.”

While pleading that he holds the CJI and other judges in high esteem, Dave said: “But I will be failing in my duty imposed by the Supreme Court itself when it held (in a number earlier judgments) that ‘the lawyers are supposed to be fearless and independent in the protection of rights of litigants’ and ‘what lawyers are supposed to protect, is the legal system and procedure of law of deciding the cases.’”

Dave continued: “I must place on regret that I have to take recourse to writing this open letter as the efforts by some of us to meet you personally have not yielded any result, despite of appointment having been sought months ago by a senior and respected colleague for and on behalf of many of us. I personally met the secretary general and apprised him of the anxiety and misgivings of the bar in this regard. Emails sent to registrar (J-I) by advocates on record (AoRs) making serious grievance about it have not been responded, far from course correction taking place. Rules of 2013 provide an appeal to the Hon’ble Chamber Judge in such matters. Perhaps to avoid such appeals being filed, the registrar (J -I) are refusing anything in writing.”

“Sir, this does not augur well for the institution of Supreme Court of India under your leadership. The institution is highly respected by all. That respect must continue forever, in all respects. I would therefore urge you to look into this immediately and take corrective measures,” the letter said.