Millennium Post

Putting in place a tall order

The retirement of Chief Justice R.M. Lodha marks the end of a period in India’s judicial history that was marked by judicial activism on the theme of ‘political corruption’ and ‘public accountability’. The Judiciary’s Writ Jurisdiction struck at the root of several crucial decisions of the Central Government. The judgment delivered in 2G and Coal gate created much tumult in the Country.

The striking down of executive and legislative acts in the Subramanian Swamy case where protection of  higher political functionaries from direct investigation was invalidated and the move to restrict political participation of criminals in Lilly Thomas defined public debate in our democracy. Justice Singhvi, Justice Patnaik and Justice Radhakrishnan all who retired within the last year were important figures of this judicial regime. What was particularly distinct about Chief Justice Lodha was his belief in ideals, an attribute which sociologist Shiv Visvanathan has described wonderfully. Such idealism gave rise to complete fearlessness in pursuit of justice.  

During his limited tenure the decision to elevate members of the Bar to the Bench was exceptional. He understood the significance of an autonomous and strong Judiciary to sustain a democratic state. However, the new Government fresh from a majority vote wasted no time in letting the Court know that this political regime seeks to have more say in the Judiciary. The unanimous recommendation made by the collegium of Mr Gopal Subramnium an eminent lawyer and thinker was dragged distastefully into controversy. This and the unfathomable urgency in moving the Judicial Accountability Bill was clearly intended to send a message to the Judiciary. In the face of flying media allegations Justice Lodha did not mince his words. 

He warned the Government that such interference is undemocratic and something which cannot be repeated. Could the Chief Justice have done more is something we will never know with the jurist withdrawing his candidature. However, a possible confrontation between the Parliament and the Judiciary was avoided. On behalf of the Judiciary Chief Justice Lodha made the obvious but essential point that without public faith in the Judiciary the constitutional promise of Rule of Law would be hollow. He made clear his reservations on the new accountability bill, while at the same time not hearing the challenge to the Bill. The challenge to the Bill was consequently dismissed by a bench headed by Justice Dave. Justice Lodha always defended the dignity of the judiciary; it was Justice Lodha who issued contempt proceedings against the former Army Chief General V.K. Singh. During court hearing the General had cast aspersions on the motives of the Court. It was an unconditional apology which stopped Justice Lodha from pursuing the contempt petition.

He was judge of high intellect and understood law within the political and sociological framework of our country. As a Judge he realised the Supreme Courts primary obligations of deciding on important questions of law.  Justice Lodha presided over nearly 10 constitution Bench Judgments clearing lacunas in Contempt, Tax and Constitutional Law. While his moral integrity produced a fearless judiciary, certain judgments also revealed an ideological bias. 

The plummeting credibility of the UPA II regime and an ideological Court led the Union to lose many vital cases. In Dr. Subhramanium Swamy vs Director of CBI, Section 6A of DPSPE was struck down in view of Article 14 of the constitution.  Prashant Bhushan Immediately after the pronouncement heralded the decision a landmark judgment. The Court also deemed this judgment a necessity to strengthen the legal framework against political corruption. Critics have argued to the contrary in the wake of nefarious revelations on the Director of CBI and the controversial opinion on Mr.Subhramaniun. 

The Court also did not entertain arguments of the possible stifling effect on executive policy. Ironically only a few months after this judgment hearing on the misdemeanors of CBI Chief were marred by controversy. Counsels for CBI alleged the petitioners were ‘bench hunting’, that they had purposely dragged this issue in Justice Lodhas Court even though it was subject matter in a separate Bench.

The counsels for the CBI also repeatedly interrupted the arguments of the petitioners.  The Chief Justice was clearly saddened and stated that he had never witnessed such an environment in court. He further stated that he is glad to be retiring soon and would not have to witness such a proceeding in the future. Regarding the coal judgment many legal commentators have argued that declaring blanket illegality momentarily threw an entire industry to speculation. It was the decision of a confident Central government of not opposing the cancellation which removed ambiguity on the issue. 

The affected rights of the private parties were only briefly heard. The Counsels for the affected private parties argue that they acted in good faith and accepted what was the Government practice of allocation. Many have argued that the judgment should not let the private parties fend for themselves.

Justice Lodha while dealing with under trial detention showed the Courts commitment to constitutional morality and basic human rights. Reminiscent of Prof Upendra Baxis post emergency narrative of people oriented judicial activism. A Bench headed by Chief Justice of India interpreting section 436A of the CrPC directed all States to release a certain class of under trials.

Those who had already undergone detention for half the maximum period of imprisonment would be discharged. In another writ petition he had issued directions to the Central Government to look urgently at the human rights of languishing Pakistani prisoners. Despite the completion of their sentence, many Pakistani prisoners had continued to languish in jail. Justice Lodha also gave a landmark decision on extra judicial killings, further protecting fundamental rights of citizens. The Court laid down stringent guidelines to be followed by the police.

The Supreme Court is the final authority on rights guaranteed by our constitution. Justice Lodha’s commitment to an independent and honorable Judiciary was remarkable. Our profession often defines our identity and helps understanding our role as citizens in the larger sociological and political framework in which we live. A Chief Justice of intellectual and moral integrity can inspire to achieve constitutional goals. It would be fair to say that Chief Justice Lodha encouraged the Bar to achieve justice.
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