Definition of “industry” reference | Who on the Bench engaged, and when

A nine-judge Bench of the Supreme Court led by Chief Justice Surya Kant reserved judgement on 19 March in the reference on the definition of “industry” under Section 2(j) of the Industrial Disputes Act, 1947. The nine judges heard arguments for three days from petitioners and respondents challenging the correctness of a 1978 judgement that expansively interpreted “industry”. A companion article has broken down the words taken by each counsel across the three days. This article looks at the other side: who on the Bench engaged, when, and for how long.

Across the three days, the Bench spoke 13,713 words, or 13 per cent of the hearing’s 106,793-word total. The other 87 per cent belonged to counsel. Within the Bench’s 13 per cent, however, the distribution was sharply uneven. Of the nine judges, two — Justice Alok Aradhe and Justice V.M. Pancholi — did not speak at all. Two others — Justice Satish Chandra Sharma and Justice Ujjal Bhuyan — spoke a combined 11 turns totalling 94 words, an estimated 40 seconds of speech each across the entire hearing. 

The active Bench was, in practice, five judges: the CJI, Justice B.V. Nagarathna, Justice Dipankar Datta, Justice Joymalya Bagchi and Justice P.S. Narasimha.

Words and turns across the nine-judge Bench

Figure 1 shows the words spoken and turns taken by each judge across all three days. Bars are sorted in descending order of words, with the four silent or near-silent judges at the foot. The left panel shows volume of speech; the right panel shows frequency of intervention. Because the two are not the same, the difference between them is itself a revealing  finding.

CJI Surya Kant accounted for 6593 words across 546 turns — 48 per cent of the Bench’s words and 54 per cent of its turns. His words-per-turn average, however, is just 12, well below Justice Bagchi’s 26 and Justice Narasimha’s 19. The CJI’s pattern featured frequent short interventions: housekeeping the floor, calling on counsel, marking time, occasionally interjecting  one- or two-sentence observations. Justice Bagchi’s pattern was the opposite: fewer but  longer interventions, each developing a question or testing a counsel’s argument over several sentences.

After the CJI, three judges formed the substantive core of the Bench’s voice. Justice Nagarathna took 2076 words across 182 turns, the second-highest by both metrics. Justice Datta took 1926 words across 126 turns. Justice Bagchi took 1766 words across 67 turns, by some distance the highest words-per-turn ratio on the Bench. Justice Narasimha took 1258 words across 67 turns. Together with the CJI, these five judges accounted for 99 per cent of all Bench speech.

Figure 2 plots the Bench’s share of each day’s spoken words. The shape is not flat. On 17 March, when the petitioner side held the floor, the Bench accounted for 11.4 per cent of words. On 18 March, when the respondents opened with Senior Advocate Indira Jaising and Senior Advocate Chander Uday Singh, the share rose to 16.5 per cent. On 19 March, when the two amici argued alongside the remaining respondent counsel, it fell to 10.2 per cent.

The 18 March share is 40 per cent higher than the 19 March share, and 39 per cent higher than the 17 March share. The Bench was substantially more interrogative on the day the wider definition of “industry” was being defended than on either day it was being attacked or summed up. Per-judge data confirms this pattern: the CJI took 2928 words on 18 March against 2087 on 17 March; Justice Datta took 1022 words on 18 March against 494 on 17 March; Justice Bagchi took 724 words on 18 March against 288 on 17 March. The day’s share rose because more judges spoke more frequently on the day the respondents were on their feet.

On the silent four

Justice Aradhe and Justice Pancholi did not speak once. Justice Sharma’s five interventions totalled 63 words; Justice Bhuyan’s six interventions, all on 19 March, totalled 31 words. Combined, the silent four interjected just 11 times across a 106,793  word hearing, accounting for a 1.09 per cent.

Silence on the Bench does not imply lack of contribution. There is no convention in the Indian Supreme Court requiring a judge to speak from the dais for their participation to be substantive. The American Supreme Court has long examined the historic silence of Justice Clarence Thomas at length, with legal literature concluding that authorial influence on an eventual judgement correlates only weakly, if at all, with oral intervention. The four silent judges on the Jai Bir Singh Bench will participate in the eventual decision on equal terms with the five who spoke.

What this silence does establish is a working operational composition that differs from the formal constitutional composition. When this Bench is analysed in future commentary, citations, or  the judgement itself, the names that will recur are the five who spoke. The remaining four will appear on the bench order at the head of the reportable judgement and may, of course, sign concurring or dissenting opinions of their own.

Wolf in sheep’s clothing

The most consequential single intervention from the Bench came from Justice Bagchi on 17 March. Additional Solicitor General K.M. Nataraj, appearing for the State of Uttar Pradesh,

argued that the Industrial Relations Code, 2020 — passed by Parliament but not yet in force — was “in the nature of a clarificatory law” and could be used to read down Bangalore Water Supply. 

Justice Bagchi pressed him on this description. “Do you really wish to press that argument that the Industrial Relations Code is a clarificatory law,” Justice Bagchi asked, “or is a law which redefines the labour relationship between employer and employee, where earlier vested rights were defined in the repealed law, namely the 1947 Act?” Nataraj qualified:“”It is not a clarificatory law but it is in the nature of clarificatory law.” Justice Bagchi pressed again: “That’s exactly. Are you going to pass off a wolf in sheep’s clothing?”

The exchange continued for several further turns, with Justice Bagchi framing his concern that accepting Nataraj’s interpretation would mean the Bench “unwittingly giving retrospectivity through our judicial imprimatur” to a not-yet-notified statute while reviewing a 48-year-old precedent. 

The intervention is characteristic of Justice Bagchi’s pattern: long-formed, doctrinally pointed, and focused on testing rather than asserting. It also illustrates why words and turns are not the same metric. Justice Bagchi’s 67 turns are the lowest among the five active judges, yet his words-per-turn ratio of 26 is the highest. When he intervened, he intervened at length, and the interventions tended to land.

Methodology

The figures in this article are drawn from the three TERES argument transcripts published by the Supreme Court of India for the hearings dated 17, 18 and 19 March. Each speaker’s distinct stretches of speech were extracted from the transcripts and the words were counted, after removing speaker labels and the transcriber’s bracketed annotations such as [UNCLEAR]. A ‘turn’ is the speech of a single named speaker between two speaker changes. Estimated times are computed at a conventional rate of 140 words per minute, which sits within the 130-to-160 wpm range commonly observed for senior counsel at the appellate bar; the published transcripts do not carry timestamps, so the estimated times are estimates, not measurements.

(Data extraction and word-level counting were performed using a script written for this analysis; the script’s outputs were cross-checked against an independent earlier run on the same data, producing identical turn counts. All editorial judgements and the conclusions drawn from the data are the author’s.)