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Justice Uday Umesh Lalit: ‘If (our) action is not up to the mark, stakeholders have a right to comment’

A fortnight before he takes over as Chief Justice of India for a term of 74 days, Justice Uday Umesh Lalit speaks on a range of issues: the perception that lower courts don’t take the cue from the highest court to the inordinate delay in hearing key cases and the need for reforms, including at least one Constitution bench sitting through the year.

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A fortnight before he takes over as Chief Justice of India for a term of 74 days, Justice Uday Umesh Lalit spoke to ANANTHAKRISHNAN G and APURVA VISHWANATH on a range of issues: the perception that lower courts don’t take the cue from the highest court to the inordinate delay in hearing key cases and the need for reforms, including at least one Constitution bench sitting through the year. Excerpts:

You have three months as the Chief Justice of India. What are your priorities?

It’s true that it’s a short tenure. But I don’t consider that because perception-wise, according to me, it’s as good and as big a tenure as an opportunity can actually (afford) me…It is an opportunity which has been given to me. I will make the most of it, in terms of laying down certain things which I consider to be healthy practices. Of course, they won’t be (shaped only by) my individual view.

Whatever I would like to put down or lay down for future generations to follow, we will take everybody in confidence, the entire body of judges or those who are supposed to be the persons who matter in that — like, for instance, what shall be done hereafter at the level of the Chief Justice, naturally my successor. So we will certainly, as a body, go along with that and try to lay down something which will be a good practice for future. If you think in those terms, then 74 days is not a limitation.

There is a growing feeling that on some key issues, for instance, bail or matters of free speech, what the Supreme Court says does not percolate to High Courts or lower courts…there is a reticence in granting bail. It’s as if lower courts have not heard the Supreme Court. How does that change, institutionally?

Let’s put it this way, 90% of our prison population is actually undertrials. There are various statutes, for instance, POCSO, Scheduled Caste/Scheduled Tribe Act or NDPS law which have an in-built mandate that bail should not easily be granted, should not readily be granted, unless certain statutory requirements are satisfied. When the matter is still at the under-trial stage, the idea is not yet crystallised because many of these provisions say that (for bail) the court (needs to be) prima facie satisfied that no offence is made out. And that puts a lot of burden on the entire system.

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Sanjay Chandra (2011 case involving 2G case accused) makes it very very clear and lays down that if six months are completed, then normally the scale of justice actually demands that bail be granted. This is so far as term sentences are concerned which are less than seven years.

There are cases which are life sentence matters. There, the other point or view which the judge or court has to note is: if I let loose this man, will it be good for the society or not good for the society. Take for instance, the case of somebody who is alleged to have committed the offence of rape or gangrape. Then the propensity of that man, if you actually grant him bail, how best you ensure that he does not commit similar kind of offence or similar kind of conduct. Therefore there is a tussle between these two extremities: one to grant bail and one not to grant bail for certain reasons. As I mentioned, statutory compulsions and societal interest.

‘You touched upon that some matters don’t get listed. That is something which we will have to find a solution to…To have Constitution benches sit all year (is one kind of institutional response)’

Therefore the courts go into that question. Now what happens with the first court is, by the time the matter comes to Supreme Court against that very order, six months would have gone. So six months of additional custody, that is a factor which we take into account, which perhaps the trial court may not be sort of equipped to do that.

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What you, at times, see is that the cases where trial court has not granted bail or even High Court has refused to grant that particular relief, we grant it. Now we grant it, it looks as if you know we have granted, so why could the trial court not do it. But at times you know, there is a travel of at least say six months or gap of six months. That’s why various considerations are there. The law has to be clear, the law has to be consistent. That is something which, as a Supreme Court, we must lay down.

There is a concern expressed by sections of the judiciary that social media platforms are used to target judges personally. What’s your view?

We are ultimately public servants. Whatever we do is supposed to be for the public good. If that action otherwise is not up to the mark, then various stakeholders will, of course, have a right to offer any kinds of comment on that. The comments must be with some deference and must be very objective. So long as those two areas are actually not transgressed, I don’t see anything wrong in any kind of criticism or comments or objections to a particular judgment or a particular order or a particular way in which that particular matter has been taken up. Nothing wrong with it…Print or electronic media is more professional. Social media — whoever puts it on social media may not have had that kind of professional sort of upbringing. But that’s a genuine concern that the man or woman voices.

‘The life of a judge is not so easy…By the time you go to bed, you are completely exhausted…The Supreme Court doctor says that by the time a judge leaves the court he has definite ailments’

So you would rather dismiss it as a spontaneous outburst?

It must be taken with a pinch of salt, so long as it is not a deliberate or a well-thought of action or a well-thought of agenda which is getting employed. Unless and until it doesn’t transgress to that level, we must actually take it in our stride.

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There is a perception among a section of those who watch the institution that the court isn’t acting as a check and balance to the extent it should. Either some key cases are not heard thereby giving the Executive the benefit of the doubt or the court avoids an intervention, doesn’t question the government’s version. Usually, this is couched in terms of national security or something that’s beyond the court’s remit. How do you view this at an institutional level?

If you put it at institutional level, then the matter has to be seen on an individual basis. As a court, we have devised a way where the benches are given the assignment to begin with every individual matter. Those matters which are assigned to a particular court, naturally, will be going by the discretion of that particular bench, their philosophy, their ideas and their understanding of the situation and how they perceive the fact situation. That’s at the individual level.

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What you touched upon is that some matters don’t get listed. That is something which, at the institutional level, we will have to find a solution to (in a way that) there won’t be any room for such criticism.

How do you propose to do that? Is it through setting up permanent Constitution benches?

That is one idea for an institutional response. To have Constitution benches sit all year. There must be avenues where these matters can immediately be taken up. What has happened in last few months or years is that the matters were not being taken up maybe (because of) various reasons; maybe because of the pandemic situation; maybe because the judges couldn’t actually sit together, couldn’t actually be coming together to the court, at times the judges were having their sittings from their individual residences. But once we are out of that arena, that pandemic area, then, perhaps, I think everything will be normalised now.

On the question of appointments, too? Appointments is a tricky area.

I don’t think so. Appointments are not a tricky area at all.

For the outsider, it seems so.

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No…the Collegium of one plus two – that is CJI N V Ramana, me and Justice Khanwilkar (now retired), we formed this Collegium after Justice R F Nariman’s retirement last August. So since then until July, almost 12 months, we could recommend 255 names. So where is the problem for the Collegium? There is none. And not a single recommendation met with any kind or reservation or dissent.

Perhaps that view is because of the opaqueness of the process?

Suppose we hold a public hearing and court kind of proceedings, that will not be conducive to good administration because various names come up in the process. At times, the Collegium members, the consultee judges, express their views quite openly, they may take an objection to a particular name, there may be more than two or three consultee judges, take for instance if the matter were to come from Bombay, there would be three or four consultee judges. If it came from Allahabad, there would be almost five consultee judges.

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Their opinions…normally they can’t go hand in hand every time. Somebody as a consultee judge is expected to give his opinion freely. That kind of analysis, when it is done at the Collegium level, by its very nature, it has to have that opaqueness. Opaqueness is only so far as what happens at the deliberations. So far as all the other issues are concerned, when the names are coming, the names come with the Collegium recommendation, consultee judges, the government’s viewpoint, the Central government’s view point, all of that is part of the entire process. So objectively one can see that.

Take, for instance, if all consultee judges were to say no and yet if the collegium of the SC were to say yes, then naturally, as on any objective parameter, the government would be justified in saying how do you say that? Like for instance in one of the cases coming from Bombay it happened. The collegium was headed by what is called the Acting Chief Justice. The list went back. That is something which happens, so there is no opaqueness on that.

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What is your interpretation of the Third Judges case, the MOP (Memorandum of Procedure), once the court reiterates, is the government bound to appoint?

Going by the law, the government is, certainly…unless there is a fresh kind of assessment that has occurred…(The) normal principle is that going by the law laid down by the Supreme Court, once the name is reiterated, then it has to have a logical conclusion.

There are names reiterated twice or thrice but yet the government drags its feet. What do you do, at an institutional level?

That is something that, as an institution, we have to, perhaps I think, decide the matter.

There is a view by some senior advocates, or in government quarters that Third Judges says this but it’s not actually anything written in, there is nothing set in stone that you have to definitely appoint.

It’s very difficult in these matters to cast in stone… that three weeks (time to respond)…So by its very nature, judges (in the Third Judges Case) must have felt that let us not put any time limit. And it is in their wisdom that they have actually left it at that.

The SC has laid down timelines for the government for making appointments once the collegium has made its decision. A petition alleging contempt of that order has been filed but is still not listed.

Whatever is on the judicial side, it will be taken up. If the concerned bench actually says something, it is the law of the land like any judgement laid down by the Supreme Court which will be binding.

Do you support the idea of increasing the retirement age of judges or having a fixed tenure for the CJI?

I will tell you on a personal note – the life of a judge is not so easy. Five hours of hearing in court, which has to be sort of backed by efforts before you take your position on the dais; after you have completed the day, you correct the orders, finalise and formalise everything, read and deal with your judgments. By the time you go to bed, you are completely exhausted. And, therefore, there is a viewpoint among the judges that this present system is good because it gives you respite after a particular point in time, you can go back to your family and there is the next generation of judges who take over. So that’s one school of thought.

The other school of thought says that now the life expectancy has risen, the judges are still in their prime, so why not utilise their time? It’s a matter to be considered by persons who are in charge of that particular issue, whether it’s this way or the other way.

Which school of thought are you with?

Very very difficult to say. When I started my life as a judge, there was a former judge of the Supreme Court, I had a chat with him and he said, ‘Uday I started enjoying my judgeship after my retirement.’ That sentence actually tells you everything.

There is a lot of pressure that judges are under…There is a health clinic in the Supreme Court which is under the control of Dr Shyama Gupta. She has been there for almost 20 years. She says with certainty that when a judge enters the court, by the time he leaves the court he has definite ailments and I can tell you that when he goes out, he goes out not in the same health condition.

What is your view on post-retirement jobs?

It’s individual discretion. Nothing wrong in that. For instance you have NHRC, you have Lokpal. These are enactments by the Parliament. And yet they make a provision that ex-judge of the Supreme Court or Chief Justice of the Supreme Court. So Parliament in its wisdom says that very well, that talent is something which can be garnered, which can be pooled, which can be utilised. So there is the will of the people saying that, yes, such talent must be there.

Will you take up (such an assignment)?

On my individual level, I may not take it, but I don’t see anything wrong if people take it. There is a statutory provision for it and somebody has to fill those post.

Somebody will have to take it. Otherwise that particular office will be lying vacant. For instance, say, Lokpal office. If everybody says I won’t take any post-retirement thing, then you will not have that talent.

The idea of PIL was devised for a social cause. Now there is criticism that it’s being misused. There is a suggestion the docket should cite the cause instead of the name of the individual filing it. What’s your view?

I have some other views on these matters. It all started with Bandhua Mukti Morcha…involved bonded labour, you don’t actually see that bonded labour will come to the court and represent their cause. Somebody else filing on their behalf by way of public interest is the base for everything. We have grown from that idea. Unfortunately today, what happens is, I don’t mean disrespect to anybody, but perhaps I think some of the private individual litigation are masqueraded as PILs. That’s one. There are motivated litigations. They are also masqueraded. And they are part of that. I don’t say that everything is like this. There are, of course, good ideas which get advocated, placed before court.

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I was amicus for 18 years in T N Godavarman…brilliant idea which has helped in preservation of forests. But what happened in Godavarman? The original man who came up with the letter, T N Godavarman, nobody has seen that man. So who takes care of the litigation. A team of Amicus Curiae. Who appointed them? The court. So why can’t we have a system where the moment a Public Interest Litigation comes in, you appoint an amicus curia, a leading Advocate from the Supreme Court…with the result that the carriage of proceedings will be in the hands of the amicus rather than that petitioner. That will insulate you from any kind of criticism that this is motivated petition or a private interest petition or a publicity oriented petition. The moment the amicus takes it, he takes a very dispassionate view in the matter. Let the Petitioner assist the Amicus.

There has been a lot of disquiet regarding a few judgments…A person in that particular litigation is named…and that has sort of given a handle to the Executive to go after then, effectively weaponise an order of the SC where it may not have been intended that way at all. How do you see that?

Again depends on a fact situation. If there was no way that those particular observations were actually connected with the controversy in question, the person concerned can always challenge that — the action of the executive, saying this is not something that is sanctified or which is directly coming from the text of the judgement…These are all individual cases, so difficult to generalise.

First published on: 15-08-2022 at 04:04:50 am
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