Supreme Court judges who are about to leave office should stay away from cases in which judgments are likely to be reserved

In his dissent in the National Eligibility cum Entrance Test (NEET) case last week, Justice A.R. Dave said he had to be “quick and short” because the Chief Justice was soon retiring. Due to paucity of time, he said the judges had no discussion on the subject before they started writing their judgments. In making this public disclosure of the judges not being able to confer, Justice Dave is not alone. Distinguished predecessors over the last 40 years have voiced similar complaints. It is worth recalling examples of some momentous cases where collective decision-making did not happen.

Kesavananda Bharati (1973) is the most celebrated case in Indian constitutional law. It is the majority opinion in this case which laid down the basic structure doctrine (that the power of Parliament to amend the Constitution did not extend to destroying its essential features). In his judgment, Justice Chandrachud (a ‘minority’ judge) wrote that the impending retirement of Chief Justice Sikri did not leave enough time after the conclusion of arguments for an exchange of draft judgments. Of the 13 judges who constituted the bench, he said that he had the benefit of fully knowing the views of only four of them. Later, Justice Jaganmohan Reddy (a ‘majority’ Judge) wrote in his autobiography (The Judiciary I Served, 1999) that there were only eight judges at a conference convened by Sikri to discuss the case. He records that Justice A.N. Ray had told him that he had not been invited, that when he asked Sikri why some had not been called he said that he knew the views of those others but not those of the judges he had invited, and that he (Reddy) had told Sikri that it was not proper.

Land act

Some years later, Chandrachud as Chief Justice presided over a five judge Constitution Bench, which heard a challenge to the validity of the Urban Land (Ceiling & Regulation) Act, 1976 (Bhim Singhji, 1980). The judgment was delivered on November 13, 1980 since Justice Krishna Iyer was retiring two days later. Justice Tulzapurkar delivered a detailed judgment striking down the Act. On the other hand, Justice A.P. Sen wrote a detailed judgment declaring certain provisions of Sections 23 and 27 of the Act as invalid, but the rest of the Act as valid. In a very short order of seven paragraphs, Justices Chandrachud and Bhagwati declared the Act valid except for Section 27 (1) (unlike Sen who found fault with Section 23 as well) saying that “fuller reasons” would follow later. Krishna Iyer wrote an uncharacteristically short judgment agreeing with Chandrachud and Bhagwati saying: “I have not had the leisurely advantage of my learned Brothers’ full judgments save some discussion but my impending retirement impels a hurried recording of my reasons for subscribing to the order passed just now.” Almost five years later, just before Chandrachud’s retirement in July 1985, a short order was delivered by him and Bhagwati saying that they had read Krishna Iyer’s judgment closely and found that there was nothing useful that they could add to it. If the full text of Krishna Iyer’s judgment had been available to them “sufficiently in advance,” they said they would not have delivered a separate order saying “fuller reasons” will follow! And so the majority view is articulated only in the self-confessedly “hurried” judgment of Krishna Iyer.

Appointments

Many years later, a nine judge Bench of the Supreme Court decided by a majority that primacy in the matter of appointments to the superior judiciary vests with the Judiciary and not the Executive (Supreme Court Advocates on Record Association, 1993). M.M. Punchhi, a dissenting judge, wrote in his judgment that he had hoped that some “meaningful meetings” would be held, so that the court could strive to reach a unanimous decision. He complained that he was “overtaken” when he received the draft opinion of Justice J.S. Verma for himself and on behalf of four others. In despair he wrote “the fait accompli appeared a stark reality; the majority opinion an accomplishment.” Here there was no retirement looming large, and so one can only wonder why meetings could not be held. These instances, spread over four decades, are telling.

Pressure of work

Today, the judges of the Supreme Court, like judges of all other courts in the country, are more overworked than ever before. Under the pressure of special leave petitions they are left with little time for reflection on their own, let alone time for “collegiate” decision making with their colleagues. If the court has still managed to deliver great judgments from time to time, it is only because their authors were superhuman. This is a problem which needs to be seriously addressed now for the sake of the law. After all, Supreme Court judges sit in divisions of two, three, five or more (and not singly) only because the law laid down by the court must be well considered and authoritative.

Numerical strength

Fortunately, the strength of the Supreme Court has now risen to 31. It is time now to have a permanent Constitution Bench of five judges, whose composition should remain fixed for a full court term. The judges on this Bench should be free from all the other kind of cases which presently occupy their time. It is only then that they can form their views, confer among themselves and respond to each other’s concerns.

Also, retiring judges should stay off Benches dealing with “heavy” cases, where judgments are likely to be “reserved.” From about three months prior to their retirement, they should confine themselves to “admission” work or decide smaller cases where judgments can be delivered then and there (or “orally” as we lawyers like to put it). The growth of the law should not be stunted by dates of superannuation.

(Raju Ramachandran is senior advocate, Supreme Court of India.)

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