There is nothing auspicious about the midnight hour as per India’s ancient faith. Our Gods and Goddess are asleep then and only rise to the mellifluous chants of Suprabatham in our temples early dawn. The concept of transition of the day at midnight is also alien to our land which has for millennia considered the rise of the Sun as heralding the new.

The international media’s tradition of calling out Indian hypocrisy is not of recent vintage. In August 1947, Phillips Talbot, the South Asia Correspondent for the Chicago Daily, in Bombay to cover India’s historic transfer of power, wrote to his friend,

“Some days earlier astrologers had discovered that the morning of August 15-the day designated for the transfer of power was an inauspicious time. Partly for this reason and partly because they were well aware of the drama of the occasion, Congress leaders decided on a midnight session of the Indian Constituent Assembly to assume authority at the stroke of 12.”

So before you get nostalgic about Nehru’s “Tryst With Destiny” speech delivered at that Midnight Hour, just after Sucheta Kriplani sang Vande Mataram and other patriotic songs at the Central Hall, imagine the irony of the moment. The Constitutional document which one day would exhort people to adopt a “scientific temper” was midwifed in a building which witnessed superstition reign supreme.

Now that we have hopefully disabused ourselves of the romanticism associated with the midnight hour - whether to celebrate being free or, in more recent times, celebrate being taxed - let us give our thoughts to the recent “mid-night”-isation of justice delivery.

In recent days, two untimely hearings have caught the public attention. One was in the Delhi High Court when an alleged hoarder pressed for his anticipatory bail well past seven in the evening. The curiosity quotient was so high that even the learned judge was finding it difficult to join in the virtual session as too many participants had logged into the virtual court.

The other litigant who sought urgent after-hours relief was not a hoarder or a profiteer. It was the Central Bureau of Investigation (CBI), which wanted all proceedings of Kolkata’s designated CBI Court granting bail to ministers and politicians of the State’s ruling party set aside. These hearings also happened well past ten at night.

Caveat

First the caveat. Our courts are undermanned, understaffed and woefully lack infrastructure. When the Delhi High Court suo motu had raised the issue of priority of vaccination of judicial officers, court staff and lawyers, the government had stoutly opposed this call for classification. After all, it was pointed out, even porters in railway platforms work in crowded spaces. In my opinion, while a porter is equal in the eyes of law as the highest law lord, what was required to be appreciated that the judges and lawyers also bore the burden of ensuring that the justice system ran efficiently. In that sense, they were no less on the frontline than say a municipal sanitation worker who they government had rightly accorded priority in vaccination.

Be that as it may, what followed is for all to see. India has lost a number of her judicial officers and lawyers. Many court staff in many high courts fell prey to the pandemic. Therefore, even in these trying times that our courts can extend after hour audience to litigants - accused and accuser alike - is a matter that must be complimented and appreciated. Therefore, this is not a case for courts or lawyers to work less!

Evening Court

In fact, the proposal of ‘evening courts’ has been toyed with for long. As far back as in 2006, then Chief Justice of India YK Sabharwal had mooted the idea of nationwide evening courts. One would have assumed that given the mountain of arrears, such a proposal would have been welcomed with open arms by the Bar as an opportunity to, using a phrase which was the favourite of a succeeding CJI Dipak Mishra, ‘lance-ate’ the pendency, lawyers, and perhaps many judges, found reasons to discard extended court hours as a solution to India’s creaking justice delivery system.

Lawyers and staff being overworked, infrastructure and transport late into the night were some of reasons cited in opposition. However, post pandemic, when physical courts resume, the concept of “evening courts” should seriously be considered, if not for reducing pendency, certainly to reduce the crowding of courts.

“After Hours” Justice

Now, in this context, let us examine the recent ‘after hours’ proceedings in India’s first and second capital cities.

Having been a witness to a midnight proceeding myself a year back, I am the last person to advocate that the doors of justice should be firmly locked up at dusk. It was late into the night that the ‘bench’ of Dr Justice S Muralidhar and Justice Anup Bhambani of the Delhi High Court had assembled at the former’s residence to intervene and pass judicial orders. That night, the constitutional court had not only saved the twenty odd injured who were trapped in the riots cross-fire, but perhaps had set into motion the process of quelling the fires ravaging the nation’s capital. Their midnight action was a powerful message that the Constitutional Court is our greatest guarantor of life and limb and the protector of the Rule of Law.

While such an exercise can never be exhaustive or set in stone, it is important to examine what circumstances warrant a midnight hearing.

Death Penalty

The last minute judicial plea to stall an early morning execution perhaps tops the chart as the most legitimate type of case warranting a midnight hearing. The reasons for the same are too obvious to be stated. There would be no life left to fight for if the hearing had to await dawn. Many right wing whataboutery specialists often mockingly make the point that “terrorists” like Yakub Memon or “rapists” like the Nirbhaya accused seem to get priority midnight hearings in court. This is cited to illustrate the weakness of our judiciary. In fact, this is her greatest strength. Our justice is blind and even handed. Even the person convicted of the most despicable of crimes is a “person” as contemplated under Article 21 of our Constitution. By burning the midnight oil to give a hearing to persons who are pacing in the phansi ghar waiting for the Prison Superintendent to show up to take him on his final journey, our judges pay homage to this Constitution.

Rioting and Natural Calamity

Just below execution cases, the most deserving category would be the ‘force majeure’ cases. I have already addressed the dividends of mid-night hearings of such cases.

Midnight or early morning demolition

The case in which the apex court mined the right to live with dignity from the right to life and threw its protective blanket on the vulnerable pavement dweller started with a midnight call by lawyer Indira Jaising to the Bombay High Court at the instance of journalist Olga Tellis, who had espoused the cause of Bombay pavement dwellers who were to be evicted by the corporation early next morning.

Unconstitutional dismissal or installation of government

In recent memory, the Court has many times been forced to enter the political thicket as parties have been in legal combat over installation and often subversion of elected governments. In such cases, the overwhelming public interest in ensuring constitutional stability has well justified ‘after hours’ proceedings by courts. In fact, judicial intervention in matters of trust votes and defection have been welcomed as bringing some order and fair play.

Unconstitutional appointment of a constitutional Authority or Imposition of emergency

While imposition of Emergency at the state level has been heavily litigated, the same cannot be said of cases at the Centre. Be that as it may, such categories also would warrant emergent judicial attention well beyond the formal court hours. Sadly, in contrast to the cases which we have seen get ‘after hours’ attention, these cases have not received such attention either by the litigants or by the court, the constitutional restructuring of the erstwhile State of Jammu & Kashmir being a case in point.

Preferiti

In Papal elections, some of the cardinals from the College of Cardinals, which elects from among its members the next Bishop of Rome, are called “preferiti”. While all cardinals are equal and have an equal shot at being elected Pope and whereas no law permits any classification, some cardinals are clearly favourites in the race and are hence “preferiti”. Take a careful look at the litigants and the lawyers who are usually involved in such “after hours” proceedings, apply the circumstances I have set out, and you be the judge.

We live in times when a debilitated octogenarian prisoner of conscience having to wait years for his day in court makes an emotional appeal to be sent back to prison to die. It is therefore all the more imperative for the purity of the justice system to ensure that the message goes out loud and clear, to one and all, that justice has no preferiti!

The author is a Senior Advocate of the Delhi High Court.Watch this interview of Sanjoy Ghose