When Justice UU Lalit took over as Chief Justice of India in August 2022, he listed Constitution Bench cases after a hiatus of 17 months. Justice DY Chandrachud continued the practice of periodically listing Constitution Bench cases when he took over as Chief Justice in November 2022.
Twenty-seven 5-Judge Bench matters, four 7-Judge Bench matters and three 9-Judge Bench matters were listed and disposed of during his tenure. These cases ranged from complex commercial matters to crucial matters of constitutional and public importance on questions such as the right to marry, defection law, electoral finance and federalism.
With the far-reaching impact of these judgments on the everyday life of citizens, it is important that we ask whether the common citizen with limited legal knowledge is able to access and understand these judgments.
The Supreme Court has, in the past couple of years, initiated multiple projects to enhance the accessibility of courts, such as live-streaming the Constitution Bench proceedings, publishing transcripts of hearings, translating judgments into vernacular languages and publishing summaries of judgments. While these are all commendable steps, much more needs to be done to bridge the accessibility gap.
The inaccessibility of Constitution Bench judgments is largely due to their extensive length. The judgments of Constitution Benches in the last two years are, on average, an alarming 214 pages long!
Judgments tend to be lengthy due to several reasons. The Supreme Court is a polyvocal court and, therefore, there are contradictory views adopted by different benches on nearly every issue of law.
To settle questions of law, the Constitution Bench must discuss, differentiate and, if necessary, overrule multiple judgments of smaller benches. Moreover, the Court must address every argument presented before it.
Lastly, as multiple judges have publicly commented, they dictate judgments to a stenographer. This results in more verbose text compared to a written draft. Addressing these factors requires alterations to the structure and function of the Court, which is beyond the scope of this article.
Our analysis indicates two factors that can be managed by judges at an individual level to substantially reduce the length of judgments. First, judges spend a substantial number of pages noting the facts of the case and the submissions made by the advocates. For example, Justice BR Gavai in his opinion in Vivek Narayan Sharma v. Union of India has recorded submissions of the advocates for 63 pages!
Similarly, Justice Chandrachud spent 42 pages recording the submissions of the counsel in the judgment upholding the abrogation of Article 370. The rationale behind devoting considerable space to recording the arguments of the advocates is that the Supreme Court is not just the highest court of appeal and a Constitutional Court, but also a court of record.
Without a documented record of submissions, the contribution of lawyers to the development of jurisprudence on crucial issues may be lost over time. However, this concern has been mitigated by the transcript recording service and live-streaming of cases.
Given these advancements, it may be time for judges to consider reducing or eliminating extensive documentation of arguments presented by each advocate in cases.
Second, in most cases, the concurring opinions are longer than the majority opinion itself. Concurring opinions, instead of highlighting the divergence from the opinion of the majority, are often full-fledged judgments with sections on factual history and submissions.
Our research indicates that in the eighteen Constitution Bench judgments in the last two years that either had a concurring or a dissenting opinion, eight of them had a section repeating the submissions of the advocates.
For example, in the judgment of In re Section 6A of the Citizenship Act 1955, Justice Surya Kant, who authored the opinion for the majority, recorded the facts in 29 pages and the submissions in 6 pages. Justice JB Pardiwala, in his dissenting opinion, has again recorded facts and submissions for 18 pages and 5 pages each.
In the judgment of Aligarh Muslim University v Naresh Agarwal, Chief Justice Chandrachud, writing for the majority, has summarised the facts and submissions in 5 and 14 pages each. However, Justice Satish Chandra Sharma, who authored the concurring opinion, spent a whopping 33 and 32 pages recording the facts and submissions, respectively.
As a result, concurring opinions frequently repeat much of the majority judgment. The length of the judgments can be reduced if the concurring and dissenting opinions focus solely on the points and reasons for divergence.
Additionally, we note that since February 2023 - when the Supreme Court began publishing the transcripts of Constitution Bench hearings - 18 Constitution Bench hearings have been conducted.
Complete transcripts are available for 14 of these cases, partial transcripts are available for 2 cases and no transcripts are available for 2 cases. The Supreme Court of India adopted a multi-pronged approach to enhance the accessibility of complex judgments by spearheading the projects of publishing transcripts of hearings and summaries of judgments.
For accessibility to be truly achieved, it is important that each of these projects is implemented. For example, if the transcripts of hearings are not readily available, then our proposal to eliminate or reduce the extensive recording of submissions of advocates would be futile. While the Supreme Court has, no doubt, made some significant progress, ensuring accessibility requires the sustained implementation of each measure.
Nivedhitha K is a Project Fellow and Anshul Dalmia is a Research Fellow at Vidhi Centre for Legal Policy.
(This article is the third in a series by the JALDI (Justice, Access, and Lowering Delays in India) initiative at the Vidhi Centre for Legal Policy, analyzing the significance and functioning of Constitution Benches at the Supreme Court.)