From Judgement Reserved to Pronounced: The case for transparent judicial deliberation

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 seven-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:

1. 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. 

2. The authoring judge circulates the draft judgment/opinion to the members of the bench. 

3. The authoring judge is free to revise the draft. 

4. The other members of the bench may accept the draft; request additional reasoning; write a concurring opinion; or write a dissenting opinion.

5. The judge authoring a new and separate draft opinion also gets to circulate it to the members of the bench, albeit with lesser time. 

6. 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:

1. Judgment is pronounced in open court, either immediately or on a future date, with due notice to parties and Advocates on Record. 

2. A judgment prepared by one member may be read out by another.

3. 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 prescribe 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.