Justices AK Sikri and Ashok Bhushan had sought for the assistance of Attorney General KK Venugopal and Additional Solicitor General Tushar Mehta. Dushyant Dave, Kapil Sibal and Prashant Bhushan appeared for the petitioner and attempted to raise the grievances of senior judges but were stopped by the bench of Justices Sikri and Bhushan. "We are not against any particular order", Dave said, according to Bar and Bench.
The lawyers said their objective was not to make personal allegations, adding: "Our concern is when Supreme Court Registry takes direction from the CJI for marking the case... power should be used correctly". In Justice Karnan's case if it was a threat to the dignity of the court, the present one is a threat to the very life and existence of the institution.
Prima facie, allocation of "sensitive and important cases" done by the collegium of five senior-most judges is not a workable solution because that would mean the five judges would be required to sit every day or twice a week to allocate cases: Justice Sikri.
Clarifying that he was not talking from any political stance, Sibal said, "No party should be allowed to interfere in the processes of appointment to the Hon'ble Supreme Court from judges".
Justice Kurian said the Supreme Court had to take on the government on the judicial side. "You [CJI Misra] may recall, and as has been the practice, it was our decision to send the names [to the government] in a phased manner so that there may not be any adminsitrative or other difficulty". Writing the judgment for the bench, Justice Chandrachud referred to constitutional schemes and said: "the Chief Justice of India is first among equals and has the authority to decide the allocation of cases and setting up of benches". "If you can come up with some other suggestion, maybe we could consider". "How can five senior judges of the Supreme Court sit everyday or twice a week to allot cases", he said. Dave said there are 14 instances when the CJI's discretionary power has been exercised arbitrarily, citing the matter of appointment of CBI special director RK Asthana. Government owes a duty to take a call on the recommendation as soon as the same in sent from the Collegium.
Expressing concerns over the fact that the issues raised by the four distinguished judges have not yet been fully addressed, Sibal said that that the matter of powers of the Chief Justice with respect to the roster system came up before Justice J Chelameswar in court today, but he declined to deal with the matter. "I mentioned the first seven only because of the mandate of the Full Court in Justice Karnan's case", he said.
Pointing to "extremely disturbing trend" of listing matters "subjectively and selectively" only before certain benches, the PIL said the trend reflects "serious erosion of independence of the judiciary" by resorting to the method of "favoured listings".