JUSTICE DIPANKAR DATTA'S separate opinion in Aligarh Muslim University v. Naresh Agarwal (2024), opens with a remarkable eleven-paragraph prologue, giving insight on how judges prepare draft judgments before they become binding law. The prologue charts the journey from the moment when the judgment was reserved on February 1, 2024 to its pronouncement in open court on November 8, 2024. This process is rarely visible to the public and judges seldom speak about it.
Drawing on judicial history, we examine how this judicial process shapes the rule of law and the binding force of precedent. The United States (‘US’) and the United Kingdom (‘UK’) have robust conventions governing ‘conference of justices’ and ‘private meetings’. It is time for the Supreme Court of India to establish clear guidelines of its own.
The case that opened the question
The Supreme Court of India constituted a 7- judge bench to decide the minority status of Aligarh Muslim University and whether the decision in S. Azeez Bhasha v. Union of India (1967) requires re-consideration. Hearings ran from January 9, 2024 to February 1, 2024, when judgment was reserved. Under the Supreme Court Rules, 2013, the judgment must then be pronounced in open court, either immediately or on a future date. A careful reading of Justice Datta’s prologue reveals the following key steps in the interim:
Once the arguments are concluded and the judgment is reserved, the task of authoring the judgment is assigned by the presiding judge of the bench.
The authoring judge circulates the draft judgment/opinion to the members of the bench.
The authoring judge is free to revise the draft.
The other members of the bench may accept the draft; request additional reasoning; write a concurring opinion; or write a dissenting opinion.
The judge authoring a new and separate draft opinion also gets to circulate it to the members of the bench, albeit with lesser time.
A conference of bench members takes place with an objective to exchange views, deliberate and build consensus. It is here that justices align with the majority or minority position.
This process of judicial deliberation is a cornerstone of the rule of law. It upholds collegiality, fosters democratic deliberation among judges, and shapes the judgments that govern us all. Yet, it remains largely unseen.
The Supreme Court’s constitutional guidelines for ‘delivery of judgment’
Any systematic analysis of the principles governing the above aspect would lead to Article 145 of the Constitution of India, 1950, which grants the Supreme Court rule-making power and sets out the following: judgments must be delivered in open court, and the manner of delivery, including any dissenting judgment or opinion, is to be regulated by the Court's own rules.
Order XII of the Supreme Court Rules, 2013 adds the following:
Judgment is pronounced in open court, either immediately or on a future date, with due notice to parties and Advocates on Record.
A judgment prepared by one member may be read out by another.
Once pronounced, a judgment, majority or dissent, cannot be altered or added to, except to correct clerical or arithmetical errors.
Notably, neither the Constitution nor the Supreme Court Rules, 2013 prescribes any procedure for the preparation and finalisation of draft judgments during the period between reservation and pronouncement. What internal guidelines, conventions, or practices govern this critical period remains uncodified.
Observation of Justice M. P. Thakkar in Tulsiram Patel
The opinion of Justice Datta refers to the dissenting opinion of Justice M.P. Thakkar in Union of India v. Tulsiram Patel (1985):
“Had it not been a race against time to circulate the opinion by 6.11.2024, the limit I had set for myself and assured to the CJI, the opinion could have been much better articulated and more compact. But my pain is truly reflected in the passage from Union of India v. Tulsiram Patel (1985) 3 SCC 398 *** and how, despite all the advancements in the justice delivery system that we proudly boast of having introduced, in a way history seems to have repeated itself.”
Justice Datta’s words reflect a deep unease about collegiality, internal deliberation, paucity of time, and ultimately, the quality of legal analysis that such conditions produce.
Justice M.P. Thakkar writing his dissenting opinion in the Union of India v. Tulsiram Patel (1985) has observed and rued the lack of internal deliberation among the justices, opportunity to persuade or get persuaded by the reasoning of fellow justices. Without a genuine meeting of minds on draft judgments, he warned, the quality of both concurring and dissenting opinions inevitably suffers. He observed:
“It would have been appropriate if a meeting of the Judges constituting the Bench had been convened to seriously deliberate and evolve a consensus … A 'give and take' of ideas, with due respect for the holders of the opposite point of view … would not have impaired the search for the true solution or hurt the cause of justice…
…If only there had been a meeting in order to have a dialogue, there might have been a meeting of minds, and we might have spoken in one voice … the full draft judgment running into 237 pages has come to be circulated in the morning of July 11, 1985, less than 3 hours before the deadline for pronouncing the judgment.”
Whether any practice direction, standard operating procedure, or established convention governs the deliberative process of the Supreme Court of India remains unknown, it is simply not in the public domain.
These observations irresistibly highlight three critical concerns::
(a) Rule of Law: Larger benches are typically constituted to reconsider earlier pronouncements of the Court. In such cases, deliberation and consensus-building on whether to overrule settled law directly bears on the rule of law, whose hallmarks are certainty and predictability.
(b) Collegiality: A meeting of minds on draft judgments is essential to the deliberative process. A unanimous judgment avoids the difficulty of extracting a ratio from multiple opinions that reach the same conclusion by different reasoning.
(c) Paucity of Time: Draft judgments circulated at the last hour, without any preceding conference among justices, leave dissenting judges with little time to articulate their reasoning or persuade their colleagues. This undermines the rule of law and may fall short of constitutional standards.
When a plurality of judges sit on a bench to hear and decide a particular case, it is also expected of them that on a designated date for pronouncement of judgment – all the opinion/ decisions (be it majority, concurring or dissenting) – will be handed together at a time, and will be signed by all the individually in the open court.
Seven-judge bench decision in Bangalore Water Supply
The seven-judge bench decision in Bangalore Water Supply & Sewerage Board v. R. Rajappa (1978) offers a striking illustration of what can go wrong in the absence of structured judicial deliberation. Opinions were delivered as follows:
February 21, 1978: Lead majority judgment by Justice Krishna Iyer (for himself, and Justices Bhagwati and Desai) pronounced. CJI M.H. Beg's concurring opinion also delivered on the same day, his last working day on the bench.
Justice Y.V. Chandrachud, on behalf of himself, and Justices Jaswant Singh and Tulzapurkar, passed only a brief order on February 21, 1978 reserving detailed reasoning for a later date.
April 7, 1978: Justice Chandrachud's full opinion finally delivered.
Justice Jaswant Singh's partly dissenting opinion, for himself and Justice Tulzapurkar, also delivered on April 7, 1978.
It is obvious from the above timeline of pronouncement in Bangalore Water Supply Case that:
On February 21, 1978, CJI Beg's last working day, Justice Chandrachud's reasoning was simply not ready. CJI Beg therefore retired without ever having read, considered, or engaged with the opinions of Justice Chandrachud or Justice Jaswant Singh, both delivered months later.
Considering that based on oral hearing and the petition, and after reading of the draft judgment as prepared by Justice Krishna Iyer – CJI M.H. Beg was of firm opinion or decisive enough to deliver a concurring opinion. Still, the majority opinion in the Bangalore Water Supply case can be validly discredited by borrowing the words and expression of Justice M.P. Thakkar in Tulsiram Patel case, which is as under:
A give and take of ideas, with due respect for the holders of the opposite point of view (in a true democratic spirit of tolerance), with willingness to accord due consideration to the same, would not have impaired the search for the true solution or hurt the cause of justice.
The holders of the rival viewpoints did not get any occasion to, successfully persuade and convert the holders of the opposite point of view or got themselves persuaded and converted to the other point of view.
These very concerns prompted a five-judge bench in the State of U.P. v. Jai Bir Singh (2005) to refer the Bangalore Water Supply dictum for reconsideration by a larger bench. The erudite and succinct analysis by Justice D.M. Dharmadhikari, seeks to note as under:
“On the retirement of Beg CJ, Chandrachud J. took over as the CJ and he delivered his separate opinion on April 7, 1978, which was obviously neither seen by Beg CJ nor dealt with by the other three judges … A separate opinion was delivered much later by Jaswant Singh J. … after they had gone through the separate opinion given by Chandrachud CJ.”
The judges of the Bangalore Water Supply bench delivered their opinions at different times. In some instances, without ever reading the opinions of their colleagues. Finally, the petition in Jai Bir Singh, along with a batch of petitions have now led to the reconsideration of Bangalore Water Supply before a nine-judge bench.
In absence of a robust internal deliberation among the members of the bench before a judgment is delivered in the open court, the same is not 'good law' and requires reconsideration by a larger bench.
In the Indian Context, judicial retirement dates are known well in advance, unless accompanied with other unforeseen exigencies. So, a timeline can be certainly fixed for internal circulation of draft judgments, date of private conferences/meetings of the justices to deliberate and indicate their mind on the various issues and also the date of pronouncement of judgment in the open court.
Comparative perspectives
The Supreme Court of the United States follows a robust mechanism of ‘conference of justices’ after the oral hearing of a case, which reflects the culture of democratic deliberations, constitutional ethos and perhaps, the display of collegiality at the highest level.
After oral arguments, justices hold a private conference to discuss and decide the case. Each justice states their view in descending order of seniority, beginning with the Chief Justice, and an initial vote is then cast in the same order. The senior justice in the majority assigns authorship of the majority opinion; the same process applies for any dissent. Once all draft opinions are prepared, a further conference is held to finalise them. No opinion is considered the official opinion of the Court until publicly delivered. There are no fixed rules on when exactly a decision must be released.
In the UK Supreme Court, all judgments are reserved after oral hearing. While the Court's rules do not explicitly prescribe how judges are to meet and deliberate during the interregnum, a well-established convention governs the process.
Following the close of oral hearing, judges meet privately in conference. Each justice, in reverse order of seniority, states their preliminary view, whether to allow or dismiss, together with a summary of their main reasoning. Each justice speaks for five to ten minutes without interruption. Further conferences may follow, depending on the degree of agreement among the justices.
The presiding justice selects the authoring judge, taking into account workload and expertise. This procedure does not preclude any justice from writing a concurring or dissenting opinion.
A confidential copy of the draft judgment is supplied to the parties, subject to strict conditions: the draft and its substance must not be disclosed to any person or made public, and no action may be taken in response to it, other than internally, before the judgment is formally handed down. Any breach of these conditions may constitute contempt of court.
Parties may submit proposed corrections to the draft judgment. Once all draft judgments are finalised internally, a publication date is fixed and the judgment handed down accordingly.
The decisions rendered by the seven-judge bench in Bangalore Water Supply should be thrown in the dustbin for the simple reason that the then-CJI M.H. Beg, who authored a concurring opinion, retired on February 22, 1978 without ever having read the reasoning of Justice Jaswant Singh or Justice Y.V. Chandrachud.
Conclusion
Whether any practice direction, standard operating procedure, or established convention governs the deliberative process of the Supreme Court of India remains unknown, it is simply not in the public domain. Justice Dipankar Datta's opinion in the seven-judge bench decision of Aligarh Muslim University v. Naresh Agarwal confirms this gap and is a clarion call for reform.
Further, it can be argued safely that in absence of a robust internal deliberation among the members of the bench before a judgment is delivered in the open court, the same is not ‘good law’ and requires reconsideration by a larger bench. Equally, where any member of the bench delivers their opinion after the fixed date of pronouncement, even a majority decision cannot be said to lay down good law, for the simple reason that the remaining justices had no opportunity to read and engage with reasoning that was not yet before them.
The decisions rendered by the seven-judge bench in Bangalore Water Supply should be thrown in the dustbin for the simple reason that the then-CJI M.H. Beg, who authored a concurring opinion, retired on February 22, 1978 without ever having read the reasoning of Justice Jaswant Singh or Justice Y.V. Chandrachud, whose opinions came later. The principles of internal deliberation and collegiality were plainly not observed. Such a decision can hardly be said to constitute law declared and judgment delivered in open court in any meaningful constitutional sense.
Pronouncement in open court must mean not only physical and spatial sense in the public eye rather should also be read and understood as first, that all opinions, majority, concurring, and dissenting, must be handed down together on the same designated date; and second, that every participating justice must have had sufficient time to read all draft opinions, engage in genuine deliberation, and where they see fit, author or join a separate opinion. Anything less falls short of the constitutional standard.