The question whether the mills of justice must grind slowly and exceedingly well, as the saying goes, or aim at swift decisions, is a matter of interminable debate. When the British Supreme Court
gave a 20-page decision against their Prime Minister last month after a three-day hearing, some held it out as a model for our courts which grate petitioners for decades. The issue before that court was comparatively simple though of high political consequence. Our Supreme Court
has before it a batch of appeals and writ petitions which involve history, archaeology, religion, politics, and 20,000 pages of documents in eight languages apart from the high court judgment that ran into 8,000 pages. But for the deadline set by the Chief Justice, the Ayodhya case
would not close this week.
In the normal course, judges do not set a deadline to finish arguments. Hearing normally grinds along for weeks in ordinary cases. Speeding up hearing is rare and carries a judicial hazard when one of the judges is about to retire. In the Ayodhya case, this was one of the factors which weighed with the CJ who heads a five-judge bench. He is retiring on November 17 and this is seen as the main factor for hastening the hearings.
There is a section of lawyers that thinks judges who are about to retire should not take up heavy cases. Such matters should be heard by a bench whose judges have sufficient time to hear all parties, hold conferences, exchange notes and give a final view. Past instances have amply shown that the impending retirement of one judge on the bench disrupts the comity of the brethren. It happened manifestly in the celebrated Kesavananda Bharati case. The then CJ, who was about to retire, and 12 brethren delivered 11 separate judgments running into 800 printed pages a day before his retirement. One member on the bench complained of lack of time to discuss the points among themselves because of the impending retirement of the CJ. Late Justice Y V Chandrachud wrote in his separate judgment that there was no full discussion by the judges because of that factor.
This unpleasant scenario repeated in several other cases. In the historical judgment, again involving the basic structure of the Constitution, called the Minerva Mills case, late Justice P N Bhagwati wrote a long passage about the paucity of time to consider all issues before the Constitution bench as one of the judges was retiring shortly. He emphasised the need for “judicial collectivity”. In another famous case involving personal liberty, named after a former chief minister Nandini Satpathy, part of the judgment was hurriedly delivered on a Saturday, a court holiday. The full judgement was available only next Tuesday. One judge wrote that he received a draft from his fellow judge only the afternoon before the date of delivery of the judgment. The then Chief Justice had only hours to retire. “I have no time to write a detailed judgment,” the judge wrote. The same judge wrote a similar observation in another important case involving another chief minister, Jagannath Misra.
If judges have enough time to confer with each other and write shorter judgments these pitfalls could be avoided. Late jurist N A Palkhivala once famously said that judges should keep in mind the shortness of human life. The CJ recently stressed the need for people to read and understand judgments while launching a project to translate them in national languages. Since communication of correct idea is all the more important in these days of disinformation and politicisation, long-winded judgments should be accompanied by an authoritative summary by the judges themselves. It had been done in the Kesavananda and the Minerva Mills cases. The three Allahabad high court judges also gave summaries of their judgments in the Ayodhya case.
In the coming months, the importance of understanding the true meaning of the judgments cannot be overemphasised. The Ayodhya judgment must be understood by the public. So also the decision on the abrogation of Article 370
of the Constitution. Long hearings followed by unwieldy judgments will prolong uncertainties as in the cases of reservations, land acquisition and Sabarimala, which are yet to be settled despite hundreds of pages of judicial wisdom. There would be clarification applications, review petitions, curative petitions and then perhaps turmoil in the streets. Finally, the judges will have to confess like a US Supreme Court
counterpart that “we are not final because we are infallible, but we are infallible only because we are final”.