74 days ago when UU Lalit took over as the Chief Justice of India, one had little to hope for. CJI Ramana's tenure had not been as bleak as that of some of his predecessors, but a lot was still left to be done. What then could a Chief Justice with so little time be expected to do?
But perhaps CJI Lalit was determined. His tenure would not be a hyphen between two terms. He was not going to just keep the seat warm for his successor. He was going to leave a mark. He made it clear when he said in a televised interview, before he took oath, that his tenure would focus on achieving "maximum efficiency through the limited resources".
And it did.
Shaking Things Up: Constitution Bench, Live Streaming & Regular Matters
Even though not more than 10 constitution benches had convened since the year 2000, five constitution benches were set up during CJI Lalit's brief blip of a tenure. The constitution benches also pronounced judgments in two cases.
Further, he agreed to live-stream constitution bench proceedings – now everyone and their uncle could watch what goes on within the hallowed portals of the Supreme Court (and find out that no, sorry Bollywood, neither do our judges actually wear wigs, nor do they incessantly slam hammers). But in all seriousness, this was a win for accountability and transparency.
Besides, regular matters, which had been gathering dust, were finally taken up – prioritised pre-lunch, while miscellaneous matters were kept for post-lunch.
The Supreme Court was moving, and moving at a frenetic pace. So much so that lawyers and legal correspondents could barely catch their breath.
There were also reports of a senior judge criticising the new listing process for want of time to consider miscellaneous matters, but CJI Lalit rubbished those reports – "we all judges are completely on the same page!"
Thing is CJI Lalit had too much to do and too little time, and with good reason. India's courts have for long been guilty of Sunny Deol's "tareekh pe tareekh" accusation, with too few attempts to change the situation. It has been a relief to watch a CJI deal with this issue and at least try to accelerate the speed of justice.
Fundamental Rights Prioritised: Bail to Teesta Setalvad & Siddique Kappan
But it isn't just the administrative effort that CJI Lalit deserves credit for. His decision to grant interim bail to activist Teesta Setalvad (on 6 September), came as a wave of relief and as a reinforcement of an individual's fundamental right to liberty. Setalvad had been in custody since 24 June, even though, as pointed out by CJI Lalit, nothing that she was charged with could bar her from getting bail.
Further during the course of the hearing, the CJI had orally remarked:
"In a matter like this, High Court issues notice on 3 August and makes it returnable on 19 September?...Is this the standard practice in Gujarat High Court? Give us a case where a lady has been involved in a case like this and High Court has made it returnable by six weeks?"
CJI Lalit's judgment in this case is also pertinent as it comes amid the respondent state's heavy resistance to the idea of Setalvad getting relief from the top court while her matter was pending before the High Court.
The fact that the Supreme Court went ahead to grant her interim bail, without withdrawing from the High Court their agency to consider the matter on merits, shows a fine balance between law and liberty - that one can exist while the other survives, that the apex court respects the High Court’s authority and the state’s submission regarding the same, while also paying heed to an individual’s right to liberty.
Note: Setalvad had been accused of forgery and conspiracy, and arrested shortly after the apex court had dismissed a plea by Zakia Jafri and her, challenging the SIT clean chit given to high state functionaries, including Prime Minister (PM) Narendra Modi in connection with the Gujarat Riots. Some civil society members had criticised the arrests as being reflective of an "aggressive abuse of power", and had expressed concerns about such arrests having a chilling effect on others.
CJI Lalit also showed that it was possible to prioritise a citizen’s fundamental rights even in a UAPA case, which is notorious for its stringent bail conditions. On 9 September, a CJI-led bench granted bail to journalist Siddique Kappan in a UAPA case, noting "the length of custody undergone by the appellant" and "the peculiar facts and circumstances” of his case.
Kappan was arrested in October 2020 while he was on his way to Hathras to cover the gang-rape and murder of a Dalit girl and had already been in jail for nearly two years when the Supreme Court’s judgment came.
During the hearing, Chief Justice Lalit verbally remarked:
“Every person has the right to free expression and therefore he is trying to propagate an idea that there is this victim who requires justice and therefore let us raise a common voice. Is that something like a crime in the eyes of law?”
He also questioned the state about how the literature allegedly found with Kappan was provocative in nature, and if it was provocative, had there been any attempt by Kappan to use it.
Unfortunately, however, Kappan wasn’t allowed to return home even after the apex court’s verdict. Two months after the apex court’s order, a local court in Lucknow decided to deny him bail in a PMLA case (which is incidentally predicated on an offence in which the FIR was filed in 2013 — in which Kappan was not even named).
But the approach adopted by CJI Lalit in both Setalvad and Kappan’s case show that he valued the right to liberty and was unafraid of asking the state some tough questions.
Unhesitant in Dissent
He also did not hesitate to dissent with other members on the bench. While the Supreme Court (by a 3:2 ratio) upheld the validity of 103rd Constitutional Amendment which introduces 10% reservation for Economically Weaker Sections, Justice Ravindra Bhat and CJI Lalit disagreed with the decision.
In his dissenting opinion, Justice Bhat wrote:
“I feel…that this court has for the first time, in seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle.”
Further, according to Justice Bhat the amendment undermines “the fabric of social justice” and the basic structure of the constitution. He also noted that it is “deluding us” into believing that those receiving social and backward class benefits are “somehow better placed".
UU Lalit concurred with this minority view, and he did it on his last day as Chief Justice of India. In doing so, he again reminded us of his commitment to constitutional values, keen understanding of the law and the ability to disagree with the executive – which is expected of the judiciary, but is becoming increasingly scarce.
But CJI Lalit, in his 74 day tenure, made reforms to the functioning of the top court, allowed bail to political prisoners, and concurred with a powerful dissent.
So What Was Missing?
Which is why, it was a matter of grave astonishment when the apex court decided to hear an appeal against a High Court order discharging former DU professor GN Saibaba, on an urgent basis, on a Saturday.
On 14 October, the Bombay High Court discharged Saibaba and his co-accused in a UAPA case and ordered their release. Exactly a day later, the Supreme Court sat on a Saturday and suspended the discharge order, thereby preventing Saibaba from exiting jail for even a day.
Note: GN Saibaba is wheelchair bound, crippled by ailments and 90% disabled. But that is not the primary reason why one may be most troubled by the apex court’s order.
As pointed out by Senior Advocate Colin Gonsalves, the Supreme Court did not even find the High Court’s order to be prima facie wrong, and:
“Unless, a superior court finds a lower court’s order unsustainable, you cannot stay the order. Not just because the court wants to look into the very fine points of law.”
Read more about the concerns pertaining to the apex court’s order suspending the High Court judgment in GN Saibaba’s case here.
It is true that this decision came from a bench of Justices MR Shah and Bela M Trivedi, and not from CJI Lalit. So, you may wonder why it features in an analysis of his legacy.
The answer to this lies in the fact that the Chief Justice of India has the power to decide which case is listed when, and before which bench. As pointed out by Manu Sebastian, Managing Editor of LiveLaw in an article published in the legal-news website:
“The tearing hurry with which the petition filed at 3.59 PM yesterday (sic) was listed for hearing on a non-working day, that too before a special bench (as per the present sitting arrangement, there is no regular bench consisting of Justice MR Shah and Justice Bela M Trivedi) has startled many. And the questions stop at the Chief Justice of India as (he is) Master of the Roster.”
Experts have told The Quint that never before has an urgent Saturday hearing taken place to stay the acquittal (or discharge) of a person. “This is unprecedented,” former Chief Justice of Rajasthan High Court Pradeep Nandrajog said.
This Saturday hearing to take away somebody's liberty will remain a question mark in CJI Lalit’s otherwise largely unblemished tenure.
Analysing CJI Lalit’s legacy, in the aftermath of this apex court hearing, Advocate Gautam Bhatia wrote in his blog:
“…does organisational competence make up for the deprivation of freedom, as if the two things form part of the same currency, to be traded against one another? Or is freedom itself a tradable commodity, where bail to one individual justifies keeping six others in jail? Is not a live-streamed executive Court, which sits on a Saturday morning to suspend an order of acquittal/discharge, still an executive Court? ”
If in the next CJI's words, "deprivation of liberty even for a single day is one day too many", then deprivation of liberty of even a single person matters just as much.
Still, CJI Lalit must be credited for shaking the Supreme Court out of some of its stupor and getting things done. And that too in such a short period.
Taking inspiration from Lord Alfred Tennyson's 'The Brook': one hopes fervently that (even as) chief justices may come, and chief justices may go, this efficiency remains forever.
(With inputs from Mint and LiveLaw.)