There have been only 10 decisions by a Bench of Nine Judges at the Supreme Court. Justice K S Puttaswamy v. Union of India, [Writ Petition (Civil) No. 494 of 2012] is the most recent.
In Puttaswamy, CJI Khehar chose not to author a judgment and instead relied on Justice Chandrachud. This is odd. It has happened only once before in Indra Sawhney, 1992 Supp (3) SCC 217 that a Chief Justice of India (CJI M H Kania), despite being on a spectacular Nine Judge Bench, did not write. Indra Sawhney was released a day before CJI Kania’s retirement; Puttaswamy, two days before CJI Khehar’s.
CJI Ray was years from his retirement when leading the opinion in Ahmedabad St. Xaviers College Society, (1974) 1 SCC 717. CJI Sabharwal in I.R. Coelho, (2007) 2 SCC 1 only had a day at the helm, after pronouncement. CJIs Ahmadi in Mafatlal Industries Ltd., (1997) 5 SCC 536 and Thakur in Jindal Stainless Ltd., 2016 (11) SCALE 1 had a few months.
There are however 4 Nine Judge Bench decisions of which the Chief Justice of India was not even a part. CJI Venkatachailah sat out Supreme Court Advocates-on-Record Association, (1993) 4 SCC 441; S.R. Bommai v. Union of India, (1994) 3 SCC 1 and Amratlal Prajivandas, (1994) 5 SCC 54. As did CJI Anand in In Re: Appointment and Transfer of Judges, (1998) 7 SCC 739.
There is no excuse for CJI Khehar for not having written an opinion, especially when he was instrumental in finally constituting the Unicorn Bench in Puttaswamy, and in fact, chose to be One of the Nine.
We remember from the history of the Supreme Court, the urgency that one CJI showed his Brother Judge:
“I have carefully gone through the elaborate judgment delivered by the learned Chief Justice. After going through the judgment, I could not persuade myself to share the same view. As the Learned Chief Justice is to retire within a few days, I have to be quick and therefore, also short. Prior to preparation of our draft judgments we had no discussion on the subject due to paucity of time and therefore, I have to express my different views but fortunately the learned Chief Justice has discussed the facts, submissions of the concerned counsel and the legal position in such a detail that I need not discuss the same again so as to make the judgment lengthy by repeating the submissions and the legal provisions, especially when I am running against time.”
– Hon’ble Justice Anil R. Dave, Christian Medical College Vellore, (2014) 2 SCC 305.
We have missed out on CJI Khehar’s own words on Privacy after being enthralled by him in many a judgment before.