Last minute justice

There has been comment on the recently retired Chief Justice of the Supreme Court Altamas Kabir's delivering judgement on the NEET, the common entrance test for medical colleges, on his last day in office. The eminent lawyer, Raju Ramachandran, writes in the Hindu that this is by no means novel. There are several instances of judgements being delivered on the last day or close to the retirement of a judge.

The issue is not somebody delivering judgement on the last day or close to the date of retirement. When a judge takes up a case or is part of a bench that admits a case, he has no means of knowing when the case will conclude. The actual writing of the judgement, one would imagine, takes a few days and, therefore, the fact that a judgement is delivered on the last day need not detract from its merits.

The key issue, as Ramachandran points out, is whether judges have had adequate time to share views with each other. A judgement delivered on the last day of a judge's tenure would not be a problem if it has been preceded by adequate consultations amongst judges on a bench. That this does not happen very often is the real cause of concern. Ramachandran cites examples:

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.

.....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.

Ramachandran proposes some remedies. One, a permanent Constitution bench whose  composition would remain fixed for a full court term. Another is that, from about three months before their terms are ending, judges should stay away from "heavy" cases. Perhaps, one could also have a disclosure requirement for judgements delivered by a bench: the presiding judge must disclose whether the judgement has been preceded by exchange of views or consultations amongst the judges.