Context

• Recently, the CJI led Bench of the Supreme Court recalled its Ritu Chhabaria vs Union of India judgement, which emphasised on the Right to Default Bail/Statutory Bail.
• This can have many implications ranging from bypassing the existing procedures to CJI positioning himself as Master of other SC Judges. 

What is a Default/Statutory Bail?

• This is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody. This is enshrined in Section 167(2) of the Code of Criminal Procedure (CrPC).
• A Magistrate can order an accused person to be detained in the custody of the police for 15 days or However, the accused cannot be detained for more than:
  • 90 days, when an authority is investigating an offense punishable with death, life imprisonment or imprisonment for at least ten years; or
  • 60 days, when the authority is investigating any other offense.
  • In Narcotic Drugs and Psychotropic Substances Act, the period is 180 days.
• At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.

SC’s Judgement (Ritu Chhbaraia case)

• The SC affirmed an undertrial’s right to be released on default bail in the event of the investigation remaining incomplete and proceeding beyond the statutory time limit.
• It held that the right to be released on bail will not be extinguished on the mere filing of a preliminary charge-sheet.
• The court concluded that an accused’s right to seek default bail would be terminated only upon competition of the investigation within the statutory time limit.

Subsequent Recall Judgement

• The Court of the CJI entertained a recall application moved by the Union of India against the Ritu Chhabaria judgment.
• The bench an interim order directing courts to decide bail applications without relying on the decision laid down in Ritu Chhabriafor a short period of time.

Issues Regarding the Recall Judgement

• Stripping the Division Bench’s Order of its Precedential Value
  • The Court of the CJI indirectly stayed the decision despite not having any connection with the verdict.
  • It amounts to stripping the decision of the Division Bench of its precedential value even if for a short while.
• No Scope of CJI’s Intervention
  • The only recourse available to the Union of India was the filing of a review petition, which is usually decided by the same Bench.
  • There was no scope of the review petition being entertained by the Court of the CJI.
• No Scope of Recall Application Filing Before a Different Bench: There was no scope for a recall application being filed against a judgment, that too before an altogether different Bench. Doing so amounts to bench fishing or forum shopping.
• Devoid of Constitutional or Legislative Backing
  • By entertaining an intra-court appeal, the Court of the CJI has effectively instituted a mechanism that is completely devoid of any legislative or constitutional backing.
  • The order is in total disregard of the established procedure, which is a review petition.

What could be Implications of the Recall Judgement?

• The Government can bypass the existing mechanism
  • In the near future, if the government is displeased with the order of one Bench, it can simply go before the CJI to get the decision stripped of all its legal sanctity instead of re-convincing the same Bench in a review.
• Expanding Powers of CJI
  • The order has the effect of enlarging the powers of the CJI on the judicial side and of creating an unprecedented intra-court appellate mechanism within the SC.
  • The instant order has also dulled the bright line prohibiting the Court of the CJI from assuming that it is superior to all other Benches.

CJI’s Roles

• The CJI oversees allocating cases and appointing constitutional benches that deal with critical legal issues. That is why theCJI is known as the Master of Roster.
• Article 145 of the Constitution grants the CJI the authority to assign relevant subjects to the bench of justices.
• Advisory powers allow the CJI to direct and advise the government on certain matters.
• In emergency scenarios, discharges the President's function if the offices of President and Vice President become abruptly empty.

Is CJI Superior to Other SC Judges?

• Within the constitutional scheme, all judges of the SC are equal in terms of their judicial powers.
• However, the CJI enjoys special administrative powers such as constituting Benches and assigning matters and references for reconsideration of a larger Bench.
• Because of the CJI’s role as the ‘Master of the Roster’, he is regarded as ‘first amongst equals’ in relation to companion judges.
• But in any given Bench including the CJI, the vote or power given to the CJI is the same as that given to his companion judges.
• There are various examples of the CJI authoring a minority opinion of the Court.For instance, in the EWS quota dispute the then CJI, Justice U.U. Lalit, along with Justice S. Ravindra Bhat authored the minority opinion of the Court.

Why the expanding powers of CJI are a Cause of Concern?

• Despite the administrative usefulness of the ‘Master of the Roster’ system, the many recorded instances of abuse are a cause for concern. 
  • For example, 4 senior judges of the SC alleged serious infirmities and irregularities in the administration and assigning of cases for hearing to Benches of the Court (four years ago).
• The powers vested in the CJI by his virtue of being the Master of the Roster are It is impractical to lay any limits on these powers, meant for the smooth administrative functioning of the Court.

Mechanism in Other countries

• Most Commonwealth countries such as the U.K., Australia and Canada follow the same system where all judges have the same power, and CJI is considered as the first among equals.
• Countries such as the U.S., instead have a system where all the judges collectively exercise power and render decisions. Thus, they reflect the collective strength of the Court and not of Benches.

Way Forward - Digitisation of the CJI’ Administrative Functions: The practice of constituting Benches and allocating cases should be completely computerised and left out of the hands of the CJI.

Conclusion

• The legitimacy of the power of Master of the Roster has been debated many times and has been reaffirmed to the extent of administrative decisions for the smooth functioning of the Court.
• It is imperative that the CJI himself refrains from expanding his powers as Master of the Roster.