During a Constitution Bench hearing in the Article 370 case, former Chief Justice of India DY Chandrachud remarked that the Court needs to install a clock behind the bench to ensure advocates adhere to time limits estimated for their oral arguments. To this, Solicitor General Tushar Mehta retorted that some advocates would require a calendar instead!
Constitution Bench (CB) cases are those where 5 or more judges of the Supreme Court hear cases that involve a substantial question of law regarding the interpretation of the Constitution. In the past, CBs have settled pivotal questions involving individual and collective rights, including decriminalisation of homosexuality, the right to privacy as a fundamental right, and the constitutionality of the electoral bonds scheme.
As CBs address vital constitutional questions and require larger judicial capacity, a concern in constituting these benches and disposing cases has been the time such cases require.
With oral advocacy being central to the legal landscape of India, when the 99th Law Commission examined the possibility of limiting oral arguments, eminent scholar HM Seervai had called the act of interrupting a counsel an “outrage”. In the context of CB cases, however, Justice Chandrachud as master of the roster had very astutely remarked, during the hearing of the same-sex marriage case, that it was “difficult to list these cases unless time is rationed”.
Hence, a practice was introduced requiring advocates to provide time estimates for their arguments. In order to avoid repetition, the first advocate was allowed significant time to present the case, and the advocates following were requested to limit themselves to additional points. To what extent was this system followed, and, as a consequence, which were the voices that were heard the most?
The Justice Access and Lowering Delays in India (JALDI) initiative tracks the argument time taken by advocates through its Constitution Bench Time Tracker (CBTT). The CBTT uses live-streamed court recordings to collate data regarding the names of advocates arguing before CBs and the time they took at each hearing. Given the reliance on live-streamed court recordings (a fairly recent initiative), the CBTT dataset contains data regarding 23 cases, 112 hearings and 174 advocates.
As the procedural change introduced by Justice Chandrachud was to provide the first advocate presenting the case with a higher amount of time and then requiring subsequent advocates to add on, it is interesting to note the proportion of time the first few advocates took.
As per the CBTT, advocates who took the highest amount of time in a case (largely those who argued first for either party), used 39% of the total argument time in a case, on average.
Further, the first two advocates who argued for the petitioner along with the first two advocates who argued for the respondent, collectively on average took up 76% of the argument time in CB cases. This means that all subsequent advocates, who argued for either party, collectively only received 24% of the argument time in CB cases.
The number of advocates who have appeared in these cases, however, has ranged from as few as 4 to more than 37, meaning that advocates in some cases got hardly any time to present their submissions.
Nevertheless, this shows that the progressive distribution of argument time can have efficiency gains for the system and bolster the limited judicial capacity.
While progressive distribution of argument time helps make the most of limited argument time, it also means that some voices will be heard more than others. Data from the CBTT revealed that 59% of the advocates who were heard by CBs were Senior Advocates (41% were designated as Senior Advocates by the Supreme Court and 18% were designated by the High Courts).
Prior studies (Aparna Chandra et al, 2023) have highlighted the influence of Senior Advocates in ensuring admission of Special Leave Petitions at the Supreme Court, but have lamented the underutilisation of their skills and experience in substantial matters. However, data from the CBTT shows that as far as Constitution Benches are concerned, Senior Advocates score the lion’s share of argument time, indicating that the judges rely heavily on their legal acumen to understand intricacies of the constitutional issues in question.
We see that the demand on the Supreme Court’s time is largely driven by Senior Advocates. While they undoubtedly make significant contributions to the case through their skills and expertise, we must be mindful of judicial time. The Article 370 case saw the petitioners hand in a time schedule of 60 hours. Upon Justice Chandrachud’s insistence, the petitioners’ advocates significantly trimmed down their arguments by 20 hours. However, this makes the advocates’ argument time dependent on the bench’s ability to exert control, making it case-specific.
Since the Court’s capacity to constitute and hear Constitution Bench matters is largely time driven, perhaps an additional step the Court needs to take is to insist on greater reliance on written submissions and brevity in oral arguments.
With 28 main matters and 246 connected matters remaining pending before Constitution Benches, the Bar and the Bench must work cohesively to ensure efficiency of court proceedings and the realisation of constitutional rights and guarantees.
Jyotika Randhawa is a Research Fellow and Shruthi Naik is a Senior Resident Fellow at JALDI, Vidhi Centre for Legal Policy.
(This article is the first 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.)