Court Witness delivers his verdict on the chief
A
Chief Justice of India for 153 days is unlikely to leave a legacy
behind. Somehow, this one did, explains Legally India Supreme Court
postcard-writer Court Witness.
It takes a couple of months
for a CJI to ease into the position and the last couple of months as a
lame duck CJI is mostly about handing over the reins to the designated
successor. With a six week summer vacation in between, not much was
expected from Rajendra Mal Lodha’s stewardship of the Supreme Court.
Still, somehow, Lodha managed to pack into 153 days more than what many CJIs with much longer terms have been able to do.
In at the deep end
Right off the bat, his infectious enthusiasm for doing something perhaps got the better of his judgment (pun intended).
The idea of a 365-day-court
sounds very modern, citizen-friendly and necessary. Yet, it ignores the
reality of the state of the bar and the judiciary. One wondered if the
CJI knew the vacancy position in the high courts and the lowers courts;
if he knew the conditions in which some district courts were
functioning; if he knew the state of the nation’s bar which has morphed
beyond all recognition (probably for the worse) in the last two decades
since he stopped practice.
In fairness, the idea is not bad in
and of itself, but perhaps much too far ahead of its time and utopian
given the immediate and pressing problems facing the justice delivery
system in India.
Having started off on the wrong foot, Lodha perhaps did not expect what was about to hit him next.
As I’ve written before,
the Gopal Subramaniam controversy came completely from left-field and
took him by surprise. Though out of the country at the time, it’s
somewhat surprising that he heard of the controversy only from the news
reports.
By the time he returned and attempted to fix things, matters were out of his hands, and despite his best efforts, Subramanium had been borked.
At
this point, realising that he was dealing with a Government that has
just won a thumping majority in the elections and once in a generation
mandate, he could have retreated and played it safe, not wanting to
ruffle feathers.
He didn’t.
He delivered what can only be described as a stinging and public rebuke
of the Government during the retirement function of Justice BS Chauhan.
Judges rarely speak outside court and even rarer do they use a public
platform to launch into the Government of the day.
Breaking his
silence over the Gopal Subramanium saga, Lodha launched into a
Churchillian “we shall fight them on the beaches”-style speech against
the Government’s perceived interference in the judicial appointments
process. Lodha sensed that he was going to be in for a fight and decided
that he wasn’t going to back down, letting the Government know in as
public a manner as possible.
Not a caged parrot
RM LodhaIn
hindsight, it should come as no surprise that Lodha was so outspoken.
He was never one to mince his words while on the bench. On the bench
deciding VK Singh’s date of birth petition, he had much to say and more to both parties. He called the CBI a “caged parrot”
in open court during the Coal Scam hearings. He was a vocal judge, of
whom one always got the impression that one heard the judge more than
the lawyer in any given hearing.
His pronounced stutter, when he
repeated words mid-sentence or stretched syllables, made him the
favourite of mimics in our midst in the bar room, but I sensed that this
was always more from (misguided) affection than any real malice.
Like Kapadia before him, he was difficult to argue before if you were not a senior advocate.
He
did have his preferences for lawyers, particularly the style of
presentation of the lawyers of the Bombay Bar, though in his case it was
probably due to a genuine respect than a superiority complex. After
all, he had served in the Bombay high court for the bulk of his career
and had earned the respect of the demanding Bombay bar before returning
to his native Rajasthan high court and then being elevated as Chief
Justice of the Patna high court.
A collegium to be proud of
Even
with a short term as CJI, Lodha sparkled as an administrator. After
being knocked off his balance by the borking of Subramanium, he
recovered his balance admirably for the rest of his term.
Lodha managed the unprecedented feat of convincing his
collegium brethren to appoint not just one, but two lawyers to the Bench
just in his own terms If this interview is to be believed, he had plans to appoint more.
However, it’s sufficient to say that both choices that did go through,
Rohinton Nariman and UU Lalit, have been fantastic picks who will add
much to the Supreme Court.
Even other than his appointees from
the bar, faced with the Year of the Judgeocalypse and the prospect of a
Supreme Court missing one third its strength in one year, Lodha and his
collegium moved remarkably quickly in filling the vacancies in the short
time available. Of the eight vacancies, Lodha manage to fill seven
vacancies within a month of each other. Faced with the pressure of the
proposed National Judicial Appointments Commission,
Lodha and his collegium took it upon themselves to show that,
aberrations aside, it could be made to work reasonably efficiently and
effectively.
Lodha’s trinity
As a Chief Justice with
one of the shorter tenures not only as CJI but also as judge of the
Supreme Court (barely six years in total) Lodha doesn’t leave behind a
vast body of case law with which to assess his jurisprudential legacy so
to speak. Yet, the impact of at least three of his judgments will be
far reaching and have implications beyond just the law laid down.
The first of these is the Subramaniam Swamy v CBI case,
where he struck down Section 6A of the Delhi Special Police
Establishment Act, which added a layer of protection to bureaucrats
above joint secretary level, shielding them from CBI scrutiny. Enjoying
almost bipartisan support in Parliament, Section 6A stuck out as a
blister reinforcing a modern day caste system between bureaucrats and
citizens. Grave spectres of frightened bureaucrats paralysed into
inefficiency by the removal of Section 6A were raised repeatedly but
dispelled by Lodha with the cold light of reason and the principle that
no one is above the law.
The second is the earth-shattering (literally) coal scam judgment, holding the allotment process arbitrary and unconstitutional and cancelling 214 out of 218 allotments.
Once again, spectres were raised of the dangers to the nation’s
economy, the alleged “folly” of the 2G scam judgement, and the adverse
impact on investor confidence, and the prospect of an India plunged into
darkness as the furnaces grow silent for lack of coal.
Lodha
would have none of that. He was willing to let the heavens fall if they
must, but he would see justice being done to the citizens of India - the
true, silent owners of the coal. In doing so, he belied the
expectations of many a lawyer (including yours truly) that the court may adopt a cautious middle path to avoid criticism for “overreach”.
In Bhim Singh v Union of India ,
the third of Lodha’s “legacy judgments”, we’ve probably seen the
boldest judicial attempt to tackle the problem of undertrial prisoners.
Far from setting out guidelines and leaving the matter to the executive
to comply with, Lodha has put the onus of ensuring the releasing
undertrial prisoners squarely back on the judiciary’s shoulders, even
directing judges of the lower courts to conduct more sittings in prisons
to ensure that under-trial prisoners receive their due.
One only hopes the Supreme Court will continue its efforts under Dattu in resolving the under-trial problem once and for all.
Rajput
Without
indulging in too much cultural stereotyping, Lodha didn’t seem to fit
the cliched image of a Marwari Jain: hard nosed, shrewd, and pragmatic.
He seemed more like a throwback to the other great Rajasthani cultural stereotype: the Rajput warrior.
Brave,
almost to the point of foolhardiness, and always with an eye on
defending his honour and his values, Lodha was unafraid of speaking his
mind and following his convictions where others might have been tempted
to hold their peace.
Whether this was the wise course, time will tell.
For
now we can say for sure that he has indeed left the Supreme Court in a
better place than when he took over. He has, in many ways, left it
stronger and more ready to face the challenges coming its way in the
years ahead.
