- The Solicitor General said that no counter-affidavit was necessary and sought for a notice to be issued in the case, contending that a question of law was involved – instead of arguing the contrary (that there was no real question of law) in a bid to oppose the petitions.
"My Lords, please issue notice. Let this matter be heard on (next) Monday and decided…No counter is needed," he said.
- Meanwhile, the petitioners sought an inexplicably long adjournment in the case, even as the case was listed after months of them requesting the hearing.
The Quint has learned that a flurry of letters were dispatched to the Registrar of the Supreme Court on Sunday, 28 August, shortly after the matter was listed before a bench of Justices Hemant Gupta and Sudhansu Dhulia. Six of these letters, accessed by The Quint, make the same point:
The counsel will be seeking six weeks further adjournment in the matter.
Their grounds for seeking adjournment are nearly identical too: advocates are out of station, petitioners are outstation, and/or time is required for preparation and this matter was suddenly listed.
It is true that a lawyer can be caught unprepared by the sudden listing of a matter of such gravity and constitutional consequence. After all, the hijab ban has often been argued as being violative of Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19 (right to freedom of expression) and 25 (freedom of conscience), among others.
Besides, problems pertaining to listing of matters is not new. On Friday, the day of his retirement, former Chief Justice of India (CJI) Ramana had even expressed regret for not having been able to pay adequate attention to the issues of listing and posting of matters.
But still, this seemingly unanimous plea for a six-week adjournment is sure to raise eyebrows. Especially considering that Justice Hemant Gupta is slated to retire in seven weeks from now (16 October).
In a rebuke to the petitioners' plea for adjournment, Justice Gupta said on Monday morning:
"You wanted urgent listing and when the matter is listed, you want adjournment. We will not permit forum shopping."
Forum Shopping, as per the dictionary is “the practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favourable outcome."
But what a terribly sad day it would be if litigants felt the need to do bench hunting in the hallowed portals of the Supreme Court.
But Why Would That Even Be?
But why would there be such an attempt to change the court or bench in this case? Can the lawyers legitimately anticipate an outcome to the case, least of all an unfavourable one, merely by looking at the bench before them? How is that possible?
Some have speculated that the lawyers might have wanted the matter to go to a separate bench because of some of the past judgments of Justice Hemant Gupta (such as when he held that a Delhi High Court order on UAPA does not have precedent value or his orders in the Wakf board cases).
But, if the counsel wanted a different bench for any legitimate reason (such as fear of bias or seeming absence of subject-specific expertise etc), the lawyers could have technically asked the judge for a recusal.
CJI UU Lalit, while hearing a bail plea of activist Teesta Setalvad, had felt in important to inform Senior Advocate Kapil Sibal that he had (as a lawyer) represented few of the accused in the Sohrabuddin murder matter.
"I must inform you that," the (now) CJI said.
Sibal, representing Setalvad, had, however, assured the court that it really does not matter in the present case, and the hearing simply continued as it should have.
However, there have also been cases when judges have denied request.
In 2020, former apex court judge Arun Mishra had done so while hearing pleas challenging provisions of the Land Acquisition Act, despite various farmers association seeking his recusal on the ground that he had already delivered a verdict on the issue.
This came even though Justice M Venkatachalaiah had observed in 1985 (Ranjit Thakur v Union of India):
“The proper approach for the judge is not to look at his own mind and ask himself, however, honestly: 'am I biased?' but to look at the mind of the party before him.”
But Justice Mishra had said:
"The ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view".
Important reminder: In the Hijab case, however, no recusal has been sought so far.
On Dwindled 'Urgency'
On the question of pleas for urgent listing now transmuting into an (un-granted) request for six weak adjournment, it may be worth mentioning that a state of urgency is impermanent. Sometimes, with the passage of time, a plea becomes infructuous.
The counsel for the petitioners had then pointed out that they had sought an urgent hearing during all those other times because exams in the state were starting then (and hijab-wearing girls in Karnataka were being expected to choose between wearing the hijab or writing exams). So now that exams were over and the urgency has dwindled, it does make sense for petitioners' counsel to apply for more time to prepare for the matter.
The only thing we know is that so far the apex court has seen some irregular behaviour in this case – both by the State and the petitioners. If that means much, it is known only to those who exhibited the behavior. What the court should do next is for the court alone to decide.