Verbosity and repetitions

In a previous newsletter, I wrote about the Supreme Court’s listing of the only pending nine-judge matters; the Definition of Industry and the Sabarimala Reference. The listing orders stated that the Court would hear the cases for two and eight days respectively. This signaled Chief Justice Surya Kant’s intention to clear the docket and move swiftly—perhaps to five and seven-judge matters next.

While the industry matter exceeded the limit by one day, there is no end in sight with the Sabarimala Reference, as respondents only began their submissions on the tenth day of arguments. For nine days, the Constitution Bench heard arguments from review petitioners concerning the limits of judicial scrutiny in religious matters, the ‘true’ meaning of “constitutional morality” and the locus of petitioners in the original 2018 Sabarimala matter.

In its February Order, the Court had allotted three days for the review petitioners, stating that the parties should “adhere” to it while proposing timelines as per the new Standard Operating Procedure. On Day 1, however, the review petitioners proposed a timeline of 63.08 hours i.e. 14 working days calculated as per the working hours of the Court. This is 11 days higher than the recommended timeline. Surprisingly, the Court accepted this proposal, although CJI Surya Kant observed that it could “create problems” and affect “other matters.”

The respondents—who were also granted three days—suggested a shorter timeline of 5.5 days to wrap up submissions. Drawing from her extensive coverage of the hearings, my colleague Namrata Banerjee says the parties are convinced that eight days is too short to conclude arguments on diverse and complicated matters that arise when there is a conflict between fundamental rights. There is a sensitivity required to navigate sentiments which often play a big role in matters of religion. Demands for additional time are often justified on the basis of the quality of arguments.

The Sabarimala Reference is a fitting example of the challenges in executing shorter timelines when diverse voices are involved. At its heart are questions on religious rights that apply across the spectrum from Hindu, Islamic to Parsi-Zoroastrian customs. We must ask however, if his diversity of voices and issues is reflected in the arguments.

While the Court prides itself as an institution that gives a platform to multiple voices, there is a risk that the courtroom becomes an echo chamber. The arguments of the review petitioners have majorly dealt with the issue of temple entry and Sabarimala. Yet, the Reference does not hinge on the factual scenario of the Sabarimala temple alone and there is a risk of it sidelining other religious matters connected to it. The answer to the Reference will determine questions on excommunication from the Dawoodi Bohra community, the religious identity of Parsi women when they marry a non-Parsi, and Muslim women’s rights to pray in mosques. While parties have touched upon these issues in the past ten days, it is the weightage given to each subject that is the cause of concern.

Moreover, the maintainability of the original PIL in the Sabarimala case came into question during this period from multiple counsel. These arguments mainly concern the review of the 2018 Sabarimala Judgement and may not find a place in a hearing concerning the interplay between individual claims and religious rights which apply across all religious affairs.

The Bench has not lost sight of the number of days taken by the parties. Ten days later, the jury is still out on whether repetition was avoided. Our friends from Delhi suggest that the respondents opposing the review intend to argue for a longer period, despite the initial 4.5 days proposal. An immediate consequence of not adhering to the timelines would be the delay in hearing the challenge to the Citizenship (Amendment) Act, 2019—also listed on 5 May as the CJI’s Court takes up Day 11 of arguments in the Sabarimala Reference.

There are 27 five- and seven- judge cases pending at the Court. We must ask a larger question once the Court takes up these cases: will the Sabarimala Reference serve as a learning curve for an institution trying to balance efficient justice delivery with a Bar that focuses more on verbosity and less on brevity?