The truncated hearing of the Aadhaar case by a five-judge constitution bench of the Supreme Court started on January 17 and as of now, there is no end in sight. The Supreme Court does not set a strict time schedule for arguments unlike its counterparts in the US and some other countries. So arguments drag on for months. It is a convention which no Chief Justice has been able to break. Naturally, minds of those who attend the hearing tend to wander and speculate on what would happen in the coming months.
Chief Justice Dipak Misra, who presides over the bench, has listed before himself a formidable array of cases. After the Aadhaar case, the bench has to decide at least nine other cases of immense importance. They include the LGBT rights, adultery as a crime, entry of women into Sabarimala temple in Kerala, whether a charge-sheeted legislator must be disqualified, and what happens when one bench declares that a coordinate bench had passed an order ignoring law. According to the roster published by the SC following the presser of four “rebel” judges, all these cases including the Ayodhya logjam can be heard only by the CJI’s bench. This raises serious doubt as to whether it would be able to decide such momentous issues in some 60 sittings available before the CJI retires in October.
In view of the heavy burden falling on this bench, the work could have been distributed among other senior judges. After all, the roster is a man-made arrangement. It is not clear whether it was made by the CJI himself as “master of the rolls” or in consultation with other judges.
The court declares on its website that “chronology is based on the date of initial filing”. However, the selection of cases from 40 Constitution matters looks random. Cases pending for decades are gathering dust in the record room. Some of them, for instance, are clarification on the meaning of “industry” in the Industrial Disputes Act, federal principles in the liquor trade and right to property. If chronology was the criterion these issues should have been put on the front burner long ago. If importance is the test, then the privacy issues involving social media and RTI in judiciary should have been given priority. However, the present selection and distribution of work tend to support allegations of opaqueness and confounds the running controversy kicked off by the four judges on allocation of work.
Returning to the perils of long hearings, the court could not be unaware of unsavoury episodes in its history. The celebrated Kesavananda Bharati case went on for five months in 1972-73 and the judgment was hurriedly delivered only on the last working day of the then Chief Justice. Justice Y V Chandrachud, the junior-most judge among 13, opened his judgment stating that “counsel all round consumed so much time that very little was left for us to elucidate ours…The court will be poorer by the retirement of the CJ and that have set a dateline... There has not been enough time for an exchange of draft judgments”.
That was not a unique instance. In 2013, Justice Anil Dave wrote in the NEET case that he had to be “quick and short” because the then CJI was to retire and there was no time to discuss the issues with his brethren. Two days before retirement, Justice Krishna Iyer wrote a few “hurried” lines on Urban Land Ceiling. Old-timers remember caustic comments written by Justices M M Punchhi and V Khalid in similar circumstances.
If a judgment is not delivered when all the judges who heard the case are in service, it would have to be heard again by a new bench. Normally such situations are avoided. There was one recent instance when a judge happily retired without writing judgments. There was another case in which a judge hurriedly left to fight elections, leaving his draft judgment in his files. One CJI was suspected of malingering and getting admitted to hospital at the last moment as the trend was against his views.
There is still time for the CJI to share the constitutional burden with senior judges by relaxing the roster. It is true that the number of judges is dwindling amidst the stand-off between the judiciary and the executive. That is all the more reason that the CJI leaves a healthy convention which would be remembered as a silver line in these troubled times.