Observation, not binding decision

“MENTIONING” by lawyers before a court is a recognised use of judicial time to draw the attention of judges to urgent matters that may fail to get listed for detailed hearing in the normal course of events. Thus, matters relating to personal liberty, which cannot brook any delay, are “mentioned” before judges, either before they begin the regular hearing of their cases or after their normal work is over, to seek directions to the court’s registry for the early listing of the matters.

The judges on the bench, in turn, put probing questions to the counsel who request early listing to satisfy themselves of the “urgency” involved in the matter. While the judges’ questions and observations are aimed at seeking clarifications from the counsel, the judges do not express any opinion on the matter that is pending for hearing.

One such mentioning on March 27 before the court of the Chief Justice of the Supreme Court earned disproportionate space in the media, as if the court had given a binding decision. Senior Counsel Shyam Divan, appearing for Major General (retd) S.G. Vombatkere, made a mention before the bench of the Chief Justice of India (CJI), Justice J.S. Khehar, and Justices D.Y. Chandrachud and Sanjay Kishan Kaul of the batch of cases challenging the constitutional validity of the Aadhaar identification project, the National Population Register schemes, and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act passed in 2016.

Divan mentioned the cases, grouped under the lead petition, Justice K.S. Puttaswamy (retd) vs Union of India , before another bench, comprising Chief Justice Khehar and Justices N.V. Ramana and Chandrachud, on January 5, when the court’s order read: “Declined for immediate hearing for the time being.” On January 5, there were as many as eight vacancies in the Supreme Court, which has a sanctioned strength of 31 judges. As the Aadhaar case was referred to a five-judge Constitution Bench in August 2015, it was believed that Chief Justice Khehar, as the administrative head of the court, perhaps felt unable to relieve five judges to hear this matter in view of the vacancies. The Supreme Court normally sits in benches of two or three judges. The CJI specifically sets up benches of five or more judges to hear matters raising substantial constitutional issues that are referred for resolution by benches of smaller strength.

Interlocutory application No.5

On February 17, five new judges joined the Supreme Court, taking its working strength to 28. Perhaps, Diwan believed that the CJI-led bench might have a rethink in March now that the Supreme Court had more judges than it had in January. Thus, on March 27, the petitioners sought from the CJI an assurance that the Constitution Bench of five judges would be formed soon to hear the matter. Among the petitioners was Vombatkere, whose civil writ petition was tagged with that of Justice Puttaswamy (retd), which has been pending since 2012. Vombatkere, through his senior counsel Divan, sought an assurance that the interlocutory application he filed (IA No.5) seeking the court’s intervention to stay the recent spate of notifications making the requirement of Aadhaar mandatory in many schemes would be heard on April 3, as shown under the Advance List of matters slated for hearing on that day.

The CJI-led bench, after a brief exchange of views with Divan, declined to give such an assurance. As a result, Vombatkere’s IA got deleted from the Final List for April 3 and was shown in the Elimination List for that day. The Supreme Court, as if to ensure transparency, explains why a particular matter is eliminated from the Final List and included in the Elimination List. Thus, every matter in the Elimination List includes a brief explanation giving the reason for the elimination. The one reason most commonly cited is “excess matters”. A subsequent date when the matter will be listed is given along with this explanation. The second most commonly cited reason for elimination is the non-availability of the judge before whom it was listed to be heard. The third frequently cited reason is “due to compelling reason”. The Supreme Court, however, does not disclose what that compelling reason is. Vombatkere’s IA No.5 was eliminated “due to compelling reason”, and as a litigant, he can only speculate about what could have been the reason in his case.

V. Venkatesan