Abstract
Indian law settles that the Chief Justice of India (CJI) alone constitutes benches and allocates cases. The controversies of 2026 show that this legal settlement has not produced legitimacy. This article examines the doctrine, the recent disputes, and the views of judges and lawyers on both sides. It then compares Pakistan, which curtailed its Chief Justice’s power by statute and later reversed course, and Bangladesh, where the power is constitutionally entrenched yet politically contested. It argues that the real choice is not between an all-powerful CJI and a legislatively managed court. It is between unexplained discretion and published, rule-bound allocation that the judiciary designs for itself.
I. Introduction
The Supreme Court of India sits in many small benches, so who hears a case can matter as much as the arguments. The CJI, as “master of the roster”, decides that question. Defenders see a workable way to run a large court through one accountable head. Critics see a discretionary power with no duty to give reasons and no forum for review.
The debate erupted in January 2018 and has returned with force in 2026. A sitting bench protested the removal of its case from the cause list. A former judge alleged that a former CJI withdrew sensitive matters from his bench. Retired judges proposed automated allocation, and the sitting CJI called the power “misunderstood”.
Two cautions apply throughout. Many claims discussed here are allegations, reported as such and not as findings. And a power that can be abused is not, for that reason, being abused. The question is institutional design: whether the rules make abuse hard and fairness visible.
II. The Doctrine in India
The Constitution never uses the phrase “master of the roster”. Article 145 lets the Supreme Court make rules of procedure, and Order III Rule 1 of the Supreme Court Rules, 2013 provides that benches are “nominated by the Chief Justice”. Nothing in the text expressly permits withdrawing a listed matter from a bench; that gloss comes from case law.
The doctrine first matured for High Courts. In State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, a three-judge bench held that the Chief Justice is master of the roster and alone may constitute benches and allocate cases. Puisne judges may hear only what is allotted to them.
The Supreme Court applied this to itself in three decisions within eight months. In Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196, a five-judge bench annulled Justice Chelameswar’s order sending a petition to a Constitution Bench, holding that only the CJI may constitute benches. In Asok Pande v. Supreme Court of India, (2018) 5 SCC 341, a three-judge bench declined to frame allocation guidelines. In Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396, Justices Sikri and Ashok Bhushan rejected the plea that “Chief Justice” in the Rules means the collegium of senior judges.
The same judgments contain two limits. First, the power is fiduciary: Asok Pande treats it as a constitutional trust held for the court’s purposes. Second, in Shanti Bhushan Justice Sikri held that once a case is allocated, the bench acquires complete dominion over it, free of interference even from the CJI. If the CJI may re-allocate at any time, that dominion is conditional. The 2018 cases never resolved this tension, and the 2026 disputes sit squarely within it.
The doctrine was pronounced against an institutional rupture. On 12 January 2018, Justices Chelameswar, Gogoi, Lokur and Kurian Joseph publicly questioned the allocation of sensitive cases. Justice Gogoi later became CJI and exercised the same power, which defenders cite to show the problem is structural rather than personal.
III. The Chandrachud Era and the Kaul Memoir
CJI D.Y. Chandrachud (2022–2024) is credited with digitisation and a systematised mentioning process. His tenure also produced the sharpest roster disputes since 2018.
The December 2023 letters. Senior Advocate Dushyant Dave wrote an open letter alleging that sensitive matters had been shifted from the benches that first heard them, despite the senior judge being available. The CJI replied from the bench in the Satyendar Jain matter: Justice Bopanna was on medical leave and had asked that his matters be treated as no longer part-heard, so the case went to Justice Trivedi, the other judge on the earlier bench . A plausible reason existed for one case. But it surfaced only after a public objection, and a complaint about a pattern cannot be answered case by case.
Justice Kaul’s account (October 2026). In his memoir Without Fear or Favour and an interview with The Wire, former Justice Sanjay Kishan Kaul made two roster allegations :
- The petitions on delay in judicial appointments were deleted from his bench’s list overnight. The Registrar cited a two-year-old file noting about missing CJI permission. Justice Kaul said the CJI seemed under some pressure but could not say whether it came from the government.
- The petitions seeking review of Vijay Madanlal Choudhary v. Union of India (2022) were first moved to another bench. When a bench was formed with him, the CJI allegedly urged caution and a “middle path”, which he refused.
Justice Kaul distinguishes Justice Chandrachud’s administration, which he criticises, from his judicial ability, which he praises. Justice Chandrachud said he could not comment without reading the book, recalled no recorded dissent in the collegium, and said the government has a legitimate role in appointments. The account is unverified.
The Bar divides. Senior Advocate Rakesh Dwivedi called the tenure a golden period, cited rulings against the government on electoral bonds, and said any moved case must have been moved for reasons the CJI thought good. Former SCBA President Vikas Singh endorsed Kaul and argued that allocation within categories should be random.
The two sides talk past each other. Dwivedi argues from outcomes and Singh from process; a CJI can rule against the government in landmark cases and still allocate others in ways that look selective. And Dwivedi’s formulation concedes the critics’ central point: the reasons are unrecorded, so the public must take them on trust. A system that leaves memoirs as the main window into allocation invites contested, unverifiable narratives.
IV. The 2026 Controversies under CJI Surya Kant
The institutional view. At the Oxford Union in June 2026, CJI Surya Kant said the expression is misunderstood. Rosters are published in advance, most matters are listed automatically, and allocation is one duty among many. He added that assignment aims to use each judge’s expertise . This is a serious argument. Specialisation improves adjudication, and a published roster does constrain discretion. Critics’ concern is narrower: what happens when several benches share a category, or when a listed matter is moved.
The CAPF listing dispute. That margin was tested on 29 September 2026. A contempt petition on the deputation of IPS officers to the Central Armed Police Forces was listed by judicial order before Justices Ujjal Bhuyan and Atul Chandurkar. It was struck off during the lunch break. The bench directed relisting with a Registry explanation, and the CJI then constituted a special bench of Justices Manoj Misra and Bhuyan. The special bench objected that a government law officer had mentioned the matter before the CJI without notice to the other side .
Critics, relying on Justice Sikri’s “dominion” passage, called this interference with a judicial order. The administrative reading is also available: Justice Bhuyan stayed on the special bench, the explanation was placed on record, and no merits order was said to be affected. Both readings share one gap. No reasoned administrative order existed for anyone to test.
The Rajasthan High Court. In August 2026 Justice Sandeep Mehta of the Supreme Court wrote to the CJI alleging that the acting Chief Justice of the Rajasthan High Court used roster powers to move cases selectively to his own bench. Justice S.P. Sharma denied the allegations as baseless , and a new Chief Justice was recommended. The episode shows the same power operates across High Courts, and that the only correction was informal: letters, a Bar strike, a collegium resolution.
Former judges and senior advocates. At a CJAR event on 27 October 2026, Justice Abhay S. Oka (retd.) said the Supreme Court has no proper roster, only a subject-wise list. Where several benches share a category, manual intervention is inevitable, and the court is “too CJI-centric” . Kapil Sibal called allocation an administrative function that affects the substance of justice and so cannot stay beyond explanation. Prashant Bhushan proposed a roster set by five senior judges with random computerised allocation . Justice Oka also warned against calling a judgment biased merely because it favours the government, a caution that applies equally to roster critics.
V. Comparative Study: Pakistan
Pakistan moved, within three years, from Chief Justice control to a statutory committee and then to a new court where the Chief Justice is again master of the roster.
The problem. After 2009, Pakistani Chief Justices were repeatedly accused of forming “like-minded” benches. The criticism peaked in 2023 during the Punjab elections litigation under Chief Justice Umar Ata Bandial, and some of it came from judges of the court itself.
The 2023 Act. Parliament passed the Supreme Court (Practice and Procedure) Act, 2023, vesting bench formation in a committee of the Chief Justice and the two senior-most judges . A Bandial-led bench suspended it. His successor, Qazi Faez Isa, began consulting the committee voluntarily, and a full court upheld the Act by 10 to 5 in October 2023. This is the region’s strongest evidence that collegial allocation can work.
Erosion. In September 2024 an executive ordinance let the Chief Justice nominate the committee’s third member, and Justice Munib Akhtar was promptly replaced. The 26th Amendment (October 2024) gave Parliament a role in choosing the Chief Justice. The 27th Amendment (November 2025) created a Federal Constitutional Court (FCC), first staffed on the Prime Minister’s advice, and took constitutional jurisdiction from the Supreme Court. Two senior Supreme Court judges resigned in protest.
The return of the master. The FCC’s 2026 rules make its Chief Justice master of the roster, with no seniority committee. Its Chief Justice, Aminuddin Khan, had been in the 2023 majority upholding the committee. One lawyer summed up the logic: concentrated control was unacceptable in an independent court but becomes necessary in a remade one.
Lessons. Collegial allocation is workable. But reform written by the legislature can be rewritten by the executive, and the same rule can serve opposite ends depending on who controls the court.
VI. Comparative Study: Bangladesh
In Bangladesh the roster power is constitutional text. Article 107(3) provides that the Chief Justice determines which judges constitute any bench and sit for any purpose. Unlike Pakistan’s Chief Justice, he cannot be curtailed by ordinary statute. Bench jurisdictions are reshuffled regularly by published order, but without stated reasons.
The roster turned against the Chief Justice (2017). After Chief Justice S.K. Sinha’s bench upheld the invalidation of the 16th Amendment, which had let Parliament remove judges, senior ministers attacked the verdict. In October 2017 the Supreme Court announced that five Appellate Division judges would not sit with him, citing allegations forwarded by the President. He resigned in November. Formal control of the roster proved worthless once colleagues refused to sit.
The roster as discipline (2024). On 16 October 2024, amid student and lawyer protests, Chief Justice Syed Refaat Ahmed decided not to assign benches to 12 High Court judges appointed under the previous government . The Supreme Judicial Council was revived to inquire, and several judges resigned. Supporters saw a necessary step to restore confidence; critics saw a de facto suspension without a prior finding, announced to a protesting crowd.
Reform. The 2025 Judiciary Reform Commission proposed seniority-based appointment of the Chief Justice and a nine-member appointments commission. It kept the Chief Justice’s power to transfer cases between benches, but tied it to reasonable grounds or the interest of justice. It secured the office rather than diluting the power.
Lessons. Constitutional text does not settle legitimacy. The threat may run against the Chief Justice rather than from him. And securing the office’s independence is an alternative to curbing the power, though it does nothing for the transparency of individual allocations.
VII. Comparative Analysis and Reform
| Feature | India | Pakistan | Bangladesh |
|---|---|---|---|
| Source of the power | Supreme Court Rules; 2018 case law | Statute (Supreme Court); FCC Rules 2026 | Constitution, Art. 107(3) |
| Who allocates | CJI alone | Committee (Supreme Court); Chief Justice alone (FCC) | Chief Justice alone |
| Who reformed it | No one; collegial reading rejected in 2018 | Parliament and executive | Reform Commission, targeting appointments |
| Recent flashpoint | Re-allocation of listed matters | Executive re-engineering of the committee | Judges refusing to sit with the CJ; benches withheld |
| Perceived threat | CJI discretion, and pressure through it | First the CJ, then the executive | The executive, acting on or through the CJ |
Three insights follow. First, the direction of the threat varies, so the remedy must too: Pakistan shows that removing discretion by statute can hand control to the executive. Second, who designs the rule matters as much as the rule. Article 145 lets India’s Supreme Court reform itself without inviting in a litigant that appears in many of its cases. Third, the hardest cases are re-allocations, not first allocations. Shanti Bhushan‘s “dominion” principle already exists; it lacks a procedure to give it teeth.
The proposals on the table range from the status quo defended by CJI Surya Kant, to Justice Oka’s fixed High Court–style roster, to Vikas Singh’s and Prashant Bhushan’s random allocation, to Pakistan-style legislation. Each has costs. Fixed rosters lose flexibility. Random allocation can be gamed by withdrawal and re-filing and suits Constitution Benches poorly. Legislation invites executive capture. The status quo leaves legitimacy dependent on the individual CJI.
A layered package, adoptable by the Court itself under Article 145, answers most objections:
- Rule-bound first allocation. Within each subject category, fresh matters go to benches by a published algorithm, preserving specialisation at the category level.
- Reasoned re-allocation. Withdrawing a listed, part-heard or notice-issued matter requires a short written order stating the reason and the request, served on all parties. Mentioning for re-allocation requires notice to the other side.
- Principled discretion. Constitution Benches and urgent matters stay with the CJI, constituted after consulting the senior-most judges and explained in the order.
The counter-arguments are real. Reasons may become boilerplate, litigants also hunt for favourable benches, and no rule removes the CJI’s informal influence. These are reasons to design carefully, not to keep discretion unexplained.
VIII. Conclusion
The doctrine itself is not the problem. A multi-bench court needs an allocating authority, and the CJI is the natural one. CJI Surya Kant is right that published rosters constrain the role, and Justice Chandrachud’s defenders are right that his judicial record cuts against crude claims of capture.
But the doctrine’s legitimacy now rests on trust the institution has not built the means to earn. A bench learns at 2 p.m. that its case is gone. A senior judge learns from a Registrar that an old file noting justifies withdrawal. In each case no reasoned order exists to test. Pakistan shows that taking the power away by statute can end in executive control; Bangladesh shows that entrenching it does not stop it becoming a weapon. India can still reform from within. The question is not whether the CJI should be master of the roster, but whether the master should be required to explain. A power held in trust, as Asok Pande described it, can bear that requirement.
