“We, therefore, allow these review petitions and recall the judgment dated 18th July, 2013 and direct that the matters be heard afresh. The review petitions stand disposed of as allowed.”

The instant matter relates to the petition seeking review of the decision of the Supreme Court of India in Christian Medical College, Vellore & Ors. v. Union of India, (2014) 2 SCC 305 popularly known as ‘NEET decision’. The Constitution Bench presided by Justice AR Dave in its order dated 11 April 2016, gave the following reasons for allowing the review petition and recalling its judgment as under:

“Suffice it is to mention that the majority view has not taken into consideration some binding precedents and more particularly, we find that there was no discussion among the members of the Bench before pronouncement of the judgment.”

The NEET Decision (2013) was heard by a bench of three judges comprising of then CJI Altamas Kabir and Justices AR Dave and Vikramjit Sen wherein Hon’ble Mr. Justice A.R. Dave wrote a minority opinion. It is interesting to note the first two paragraph of the dissenting opinion in NEET Decision (2013) as authored by Mr. justice AR Dave as under:

1. 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.

2. 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.

It is apparent from the above that the judgment (either draft or final) of the majority judges (i.e. Mr. Justice Altamas Kabir, CJI as he then was & Mr. Justice Vikramjit Sen) was in the knowledge and he found it difficult to persuade himself to share the same view. Further, it is revealed that prior to preparation of our draft judgments, the judges had no discussion on the subject due to paucity of time and therefore, Mr. Justice A.R. Dave has to express his different views. So, Mr. Justice A. R. Dave went on to write down a separate but dissent opinion in the NEET Decision.

However, the order dated 11 April 2016 by the Constitution Bench (comprising of five judges) while allowing the review petition & recalling the NEET Decision attached a due importance to the fact that there was no discussion among the members of the Bench before pronouncement of the judgment.

Generally, when the arguments get completed in any given case, either the Bench decides to dictate the order in the open court before the parties concerned i.e. (Ex tempore judgment) or the judgment is reserved by the Bench i.e. (reserved judgment). It is pertinent to mention here that it is a curious case of ‘constitutional silence’ as what are the procedures or mechanism which the judges follow or undertake prior to delivery of judgment and after the hearing of a matter is completed and judgment is reserved. The Constitution of India & the Supreme Court Rules, 2013 – both are silent about the procedure. But, the observation of Hon’ble Justice A.R. Dave about ‘no discussion on the subject matter among the members of the bench’ has something to do with the propriety of the decision making or formulating the judgment in the instant matter. It could be well ascertained that as a matter of convention and practice – something went amiss which had persuaded the recent Constitution Bench to recall the NEET Decision and allow review petition vide its order dated 11 April 2016.

Even any strict rules and mandatory procedural requirement on this aspect would impact and jeopardize ‘judicial independence’ of apex court. So, to strike a balance between two competing set of values remains a challenging task before the Judges of the Apex Courts whose decisions / judgments become the ‘law of the land’.