Home > politics > policy > Justice Lodha—setting the bar higher

New Delhi: The retirement of the 41st Chief Justice of India, R.M. Lodha, on 27 September marks the end of more than just his tenure. A series of strong verdicts, changes in the administrative set-up and often clashes with the executive, made his relatively short tenure—lasting only five months—a rather eventful one.

Lodha presided over extremely crucial matters in the current context. Cases with a strong bearing on the economy, politics as well as public interest, were adjudicated by him.

The most recent and perhaps the most powerful verdict was his decision in the coal allocation “scam". The Supreme Court bench, headed by Lodha, scrapped nearly all allocations made between 1993-2010. In the preceding judgement, on 25 August, the executive was castigated and allocations were held to have been “arbitrary and illegal".

Lawyer Prashant Bhushan, who represented the petitioners, hailed the judgement for being “bold and historic".  

Senior advocate Vikas Singh who represented certain public sector undertakings, had a different view. “He (Lodha) had a very effective tenure. But... this (coal) judgement will go down in history as the worst judgement by the Supreme Court," he said.

The coal allocation case which was presided over by a special three-judge bench, headed by Lodha, could be a saga in itself. With many twists and turns and multiple revelations, the course of the hearing was marked by an astute application of judicial mind. While the hearing was limited to the question of irregularity in allocation of coal blocks, its scope was expanded by the bench. When the judges sensed executive interference in the Central Bureau of Investigation (CBI) probe into the allocation, Lodha’s now oft quoted comment of CBI being a “caged parrot" followed. Quickly, another dimension was added to the case and CBI autonomy came under judicial scrutiny. The government was less than thrilled and an elated CBI seized the opportunity. After many affidavits, counter affidavits and lengthy hearings, the court pronounced upon the matter, freeing up the CBI partially. The verdict gave it power to promote certain officials without having to go through the Union Public Service Commission and said that the agency should be permitted to author key reports independently.

While Lodha often took on the government, he trod carefully on the thin line distinguishing judicial and executive domain. However, he rarely refrained from pulling up the government where it faltered. In various matters, the inadequacy of executive action was criticized, chief secretaries summoned, reports sought and detailed directions issued.

It was a five-judge bench headed by him which declared Section 6A of the Delhi Special Police Establishment Act, 1946, violative of the Constitution. The section gave limited immunity to high-ranking bureaucrats who allegedly committed corruption-related offences. CBI was earlier required to seek permission from the government prior to starting an investigation. The verdict held that the Section failed to meet the right to equality enshrined in the Constitution.

Senior lawyer K.K. Venugopal said that the bench, headed by Lodha, “rightly declared the provision unconstitutional", as it “carved out a favoured class of bureaucrats and ministers who became untouchable though prima facie proof of corruption existed".

Lodha also headed a constitutional bench which was tasked with deciding on the issue of advice tendered by the Prime Minister to the President on the appointment of the ministers. The reference to the larger bench arose from a public interest litigation (PIL) which sought to exclude ministers with criminal antecedents from the cabinet. The bench showed insightful application of judicial mind and said that it had no power to intervene in such executive matters, but went on to recapitulate the constitutional obligations and duties of the Prime Minister. It only said that it “unwarranted elements" may thwart the “canons of constitutional morality" and “diminish the constitutional trust". Thus, it maintained the fine balance between the judicial exercise of cautioning the executive and overreaching into the other’s arena.

However, Lodha displayed restraint where many said it should not have been exercised. The last few months of his office also witnessed irreversible change in the method of judicial appointments. Perhaps a defining moment in judicial history, preceded by a head on collision of the judiciary and executive, occurred when judicial appointments ceased to be a judicial prerogative.

While little could be done once the legislature took over the debate, Lodha remarked on various occasions that the independence of the judiciary cannot be compromised. However, many felt that he could have done more in the episode that preceded the legislative move. When the government objected to the elevation of a senior lawyer to the bench, it sparked a media frenzy. At this juncture, many felt that the CJI could have been more vocal.

“He was abroad and asked those concerned to wait for his return even as the media went into overdrive and reported extensively about the lawyer and the government’s objections to his elevation. What was written was objectionable and so was his decision to wait. As the CJI, he should have done more," said a senior lawyer who did not wish to be named.

Yet, the court took a wise decision when it chose not to entertain PILs which challenged the Bill on judicial appointments, which is yet to attain finality, thus averting likely criticism for intruding upon the executive’s domain.

Lodha himself made his stance public, addressing the issue of the independence of judiciary and judicial appointments, when he remarked, “I feel... when appointments are done to the higher judiciary or superior judiciary is made by an institution or a body in which persons other than judges are involved, that may affect (the independence of the judiciary)... Judges are best equipped to adjudge the suitability of the person or a candidate for appointment as a judge of the high court or Supreme Court. The reason is if one has to appoint a judge from the bar, judge knows about his performance, about his court behaviour, about his knowledge, about his advocacy, about his skill. So, you can’t, there can’t be a better equipped person than a judge."

Lodha, heading the collegium, elevated two lawyers directly to the apex court, something that hasn’t been done in the recent years.

A defender of judicial sanctity, Lodha’s verdicts often repulsed efforts to reduce the power of the judiciary. In a recent decision, a five-judge bench headed by him struck down a law for setting up the National Tax Tribunal, which overtook jurisdiction of the high courts. The court firmly held that a tribunal could not replace a court, without providing the same standard of “redress", “convenience" and “expediency".

“The tax tribunal decision is a demonstration of justice Lodha’s view on independence of judiciary. The decision preserves the integrity of the high courts. There has been a slow chipping away of the high courts’ powers. There are tribunals for everything—company law, intellectual property, debt recovery, income tax, green tribunal," said senior lawyer Arvind Datar.

“Fundamental questions cannot be decided by tribunals. He also increased the members of the bar on the bench. So many appointments during his time, especially after he lost six weeks because of the vacations. He has left a wonderful legacy which he can be proud of."

Lodha also presided over a range of public interest matters and issued verdicts which sought to make structural changes, instead of a quick fix. Tackling the issue of gender violence in the form of acid attacks, Lodha’s bench laid down elaborate directives banning over-the-counter sales of acids and other corrosive substances to minors and made it a cognizable and non-bailable offence. An intricate study of the issue at hand showed in the detailed guidelines which emerged.

“The manner in which he (justice Lodha) took up the case gave acid attack victims a lot of hope," said lawyer Colin Gonsalves, who is arguing the issue of compensation to acid attack victims.

Lodha also issued a far-reaching verdict when he decided to release undertrials who had served more than half the term of the offence they were accused of. Invoking a rarely used beneficial provision of the Criminal Procedure Code to this effect, his decision not only relieves those caught up by the slow pace of investigative and judicial wings, it will also partly solve the overcrowding of prisons, a problem India is infamous for.

Equally powerful was the verdict which laid down a 16-point guideline for dealing with police encounters, establishing strict procedure for anybody found guilty of offences causing death or grievous injury during a police encounter.

Though Lodha showed exemplary gender sensitivity in the acid attack case, it was perhaps not visible in the series of sexual harassment cases that came to light, both while he was a judge and chief justice; he headed a panel to probe into an intern’s allegations of sexual harassment against a former Supreme Court judge—the first of its kind—the panel stopped short of taking concrete action.

The report stated that there had been “prima facie" proof of harassment, but no action was taken. The then chief justice P. Sathasivam had said that because the apex court judge had remitted office by the time, no action could be taken. No solution in that respect was forthcoming during Lodha’s time either.

Similar cases have now been filed against members of higher judiciary. However, the lack of credible action in the first case, has caused dissatisfaction in multiple quarters. The apex court still does not have a mechanism to investigate judicial officers when sexual harassment is alleged.

Women’s rights lawyer Vrinda Grover said, “Nothing had happened in that (the intern’s) case. There is a gap in the law and several cases have come up, including the case of the Gwalior judge. A remedy is required and a mechanism needs to be set up. It would be in the interest of the judicial institution to decide on the writ petition of the intern which asks for a larger prayer for a mechanism. We hope that it’s heard at the earliest."

A novel contribution that Lodha can be credited with is the introduction of administrative reforms seeking to positively impact judicial functioning. A much need focus on research commenced during his tenure. He set up a permanent research unit at the apex court to enhance institutional research—which shall be the legacy of his tenure.

“Chief Justice Lodha’s initiative... hardly finds any parallel across the world. It is an idea that will bring a whole range of perspectives and multidisciplinary expertise to the functioning of the court in the years to come," said Anup Surendranath, who was appointed deputy registrar (research), Supreme Court.

Lodha also ventured into terrain his predecessors were usually hesitant to enter. As chief justice, he advocated fewer holidays and longer working hours in the courts, neither of which went down well with the bar. Newly introduced rules—which shortened the court’s summer vacation from 10 weeks to 7 weeks—are now under challenge.

“As for 365 days working, I have no doubts that his intentions were sincere and good in order to reduce arrears. But it was not a workable solution," said senior lawyer P.H. Parekh, president of the Supreme Court Bar Association (SCBA).

One of Lodha’s regrets is “outright" rejection of his suggestion that the Supreme Court work around the year. He had hoped for greater dialogue on the modalities, as institutions working 365 days a year is not unheard of. “I think an opportunity which could have helped the streamlining the functioning of the courts has been lost," Lodha said.

Despite not having succeeded on all fronts, Lodha’s efforts were novel. As a judge, he will be remembered for a series of significant decisions, his sharp questions and ability to keep even seasoned lawyers on his toes and the anguish he caused to the bar by his proposal to introduce longer working hours.

Apoorva contributed to this story.

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