Recently, a Constitution Bench (comprising of five Judges) of the Supreme Court of India has allowed the Review Petition and recalled its judgment dated 18 July 2013 and directed that the matters be heard afresh. The operative para reads as under:-
“We, therefore, allow these review petitions and recall the judgment dated 18th July, 2013 and direct that the matters be heard afresh. The review petitions stand disposed of as allowed.”
The instant matter relates to the petition seeking review of the decision of the Supreme Court of India in Christian Medical College, Vellore & Ors. v. Union of India, (2014) 2 SCC 305 popularly known as ‘NEET decision’. The Constitution Bench presided by Justice AR Dave in its order dated 11 April 2016, gave the following reasons for allowing the review petition and recalling its judgment as under:
“Suffice it is to mention that the majority view has not taken into consideration some binding precedents and more particularly, we find that there was no discussion among the members of the Bench before pronouncement of the judgment.”
The NEET Decision (2013) was heard by a bench of three judges comprising of then CJI Altamas Kabir and Justices AR Dave and Vikramjit Sen wherein Hon’ble Mr. Justice A.R. Dave wrote a minority opinion. It is interesting to note the first two paragraph of the dissenting opinion in NEET Decision (2013) as authored by Mr. justice AR Dave as under:
1. I have carefully gone through the elaborate judgment delivered by the learned Chief Justice. After going through the judgment, I could not persuade myself to share the same view.
2. As the learned Chief Justice is to retire within a few days, I have to be quick and therefore, also short. Prior to preparation of our draft judgments we had no discussion on the subject due to paucity of time and therefore, I have to express my different views but fortunately the learned Chief Justice has discussed the facts, submissions of the concerned counsel and the legal position in such a detail that I need not discuss the same again so as to make the judgment lengthy by repeating the submissions and the legal provisions, especially when I am running against time.
It is apparent from the above that the judgment (either draft or final) of the majority judges (i.e. Mr. Justice Altamas Kabir, CJI as he then was & Mr. Justice Vikramjit Sen) was in the knowledge and he found it difficult to persuade himself to share the same view. Further, it is revealed that prior to preparation of our draft judgments, the judges had no discussion on the subject due to paucity of time and therefore, Mr. Justice A.R. Dave has to express his different views. So, Mr. Justice A. R. Dave went on to write down a separate but dissent opinion in the NEET Decision.
However, the order dated 11 April 2016 by the Constitution Bench (comprising of five judges) while allowing the review petition & recalling the NEET Decision attached a due importance to the fact that there was no discussion among the members of the Bench before pronouncement of the judgment.
Procedure followed by & among the members of bench before pronouncement of judgment & after hearing is concluded
Generally, when the arguments get completed in any given case, either the Bench decides to dictate the order in the open court before the parties concerned i.e. (Ex tempore judgment) or the judgment is reserved by the Bench i.e. (reserved judgment). It is pertinent to mention here that it is a curious case of ‘constitutional silence’ as what are the procedures or mechanism which the judges follow or undertake prior to delivery of judgment and after the hearing of a matter is completed and judgment is reserved. The Constitution of India & the Supreme Court Rules, 2013 – both are silent about the procedure. But, the observation of Hon’ble Justice A.R. Dave about ‘no discussion on the subject matter among the members of the bench’ has something to do with the propriety of the decision making or formulating the judgment in the instant matter. It could be well ascertained that as a matter of convention and practice – something went amiss which had persuaded the recent Constitution Bench to recall the NEET Decision and allow review petition vide its order dated 11 April 2016.
Even any strict rules and mandatory procedural requirement on this aspect would impact and jeopardize ‘judicial independence’ of apex court. So, to strike a balance between two competing set of values remains a challenging task before the Judges of the Apex Courts whose decisions / judgments become the ‘law of the land’.
A good ex tempore judgment by the judges is a work of art, but an ill-prepared one could be a rambling mess.1 In the Supreme Court of India, Justice K. Ramaswamy (1989-1997) was popular for dictating judgments and orders in almost every cases which he decided in open court. It is very much understandable from the erudite decisions authored by Hon’ble Justice K. Ramaswamy as why most of them have been reported as “order” than “judgment”. Those ex tempore decisions and orders in the open court used to secure the utmost confidence and instill the credibility of common litigants to the Supreme Court of India.
In the present scenario, there are all kinds of cynicism prevailing about the credibility of the revered institution and confidence of public at large is shaken. The situation is ‘alarming, though not alarmist’.
The NEET Decision (2013) was also not short of controversy before pronouncement of verdict, which put the faith of common man at stake and credibility of institution was put at trial. As one of the practicing advocate of Supreme Court put his apprehension well before the pronouncement of the NEET Decision (2013) in following words:
“In a little while, on his last day in office, the Chief Justice’s court will deliver the much awaited judgment concerning the validity of the national medical entrance test to be conducted by the Medical Council of India. For the better part of the last week, senior counsel and junior advocates alike have without compunction shared a story that the appeals by the private colleges will be allowed with a declaration that the MCI has no jurisdiction, and that Justice Dave will dissent from this view. The judgment, it is confidently touted, runs into more than 190 pages and in excess of 300 paragraphs. It is my fervent hope that this tale is false – a figment of some perverse and destructive mind. In a few hours, we will know the truth.
In either event, the tragedy remains – that doubt has taken root. It is a long trudge uphill from here.”
Essentially, the NEET decision (2013), which is under review, has been in news and controversy for one or other reason.
With the declining practice of giving ex tempore decision in the open court, the increase in practice of ‘reserved judgments’ have three connected causes.
- First, with the advent of written arguments and increased pressure of work in terms of disposal of pendency, cases are argued more quickly than they were, and so judges have much less time to prepare judgments during argument.
- The second reason is that abundancy of literatures, precedent, and developments in law across the globe (primarily due to globalization) that it becomes almost impossible to examine and reprocess while dictating order in open court.
- And increased media reporting through new age media and technology (which are often misleading, half baked, distorted and consequently instant reaction of the public to influence public opinion).
All these makes an ex tempore judgment in open court much more challenging for the Hon’ble judges.
Processes of Reaching Judgment
Supreme Court of United States
The current practice followed by the United States Supreme Court is quite a reformed developed over two centuries of constitutional practice without much distortion. The First Chief Justice of US Supreme Court John Marshall (during his tenure between 1801 – 1835) exerted considerable personal influence on the Court and he persuaded his fellow justices to drop the practice of seriatim opinions, by which each justice wrote his own views and to adopt “the opinion of the Court” approach, so that the Court spoke with one voice.2
Since the time of Chief Justice Marshall, the practice of having conference of judges was followed to resolve the case and persuade each other puinse judges to make their opinion either this way or that way. The US Supreme Court does not sit on Friday because that particular day is reserved exclusively for the conference of Judges. The Chief Justice of the US Supreme Court calls the first case to be discussed and the judges discuss them in order of seniority. After having discussed the case, the justices vote in reverse order of seniority with the most junior justice voting first and with the Chief Justice voting last. The Chief Justice then assigns the task of writing the majority opinion if he is in the majority or if the Chief Justice is in the minority, the task is assigned by the senior associate justice. Once a draft judgment is produced, it is circulated among the justices for approval. Some opinions have to be rewritten repeatedly before a final majority agreement is achieved.3 The judges of the US Supreme Court have followed this practice since then while declaring the ‘law’ as guardian of Constitution. It makes the position of law clear, certain and essentially pragmatic which strengthen the ‘Rule of Law’ rather the ‘Rule of whims and Fancies’ of individual judges. That is the reason as why we find the plurality of opinion in most of the cases which US Supreme Court decides yet there is clarity, certainty over the principle of law.
The UK Supreme Court follows a practice of providing a two page written press summary of any judgment, as well as a more concise oral televised summary. It is an accepted fact that the important judgments are often long and complex – a concise publicly available summary of the key elements of the decision is available so that law is easily understandable by the Common man. Delivering an official summarized press note alongwith its judgment, is the practice adopted by the Constitutional Court of South Africa.
Above observations seeks to highlight some of the gap and uncertainty which exists surrounding the practice followed by Supreme Court judges while process of reaching judgment. This has been highlighted by the Constitution Bench of the Supreme Court in its review and recall order of NEET Decision (2013). A public confidence is at stake and hopefully, the Supreme Court of India would rise to occasion while formulating a set of guidelines for the members of judges based on robust convention and practices of past.
[Ravi Prakash is an advocate practising at the Supreme Court of India]
 Lord Neuberger, Sausages and the Judicial Process: the Limits of Transparency (available at https://www.supremecourt.uk/docs/speech-140801.pdf)
 Witt, Elder, ed. 1981. The Supreme Court and Its Work. Washington, DC: Congressional Quarterly Press, page 7-9.
 Witt, Elder, ed. 1981. The Supreme Court and Its Work. Washington, DC: Congressional Quarterly Press, page 65-67