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Burning brief but bright: RM Lodha’s idealism fuelled a time of remarkable judicial activism at the Supreme Court

RM Lodha
RM Lodha
Advocate Abhik Chimni argues that Chief Justice of India (CJI) RM Lodha was a remarkable CJI made of the right idealistic stuff at the right time, despite his brief tenure of less than half-a-year ending today (26 September).

The retirement of Chief Justice RM Lodha marks the end of a period in India’s judicial history that was marked by judicial activism, with much along the themes 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 Lily Thomas defined public debate in our democracy.

Justices Singhvi, Patnaik and Radhakrishnan, all of whom retired within the last year, were important figures of this judicial regime.

But what was particularly distinct about chief justice Lodha, was his belief in ideals (an attribute that sociologist Shiv Visvanathan has described wonderfully in his writings). Such idealism gave rise to Lodha’s utter fearlessness in his pursuit of justice.

During his limited tenure the decision to elevate members of the bar to the bench was exceptional. And 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 wants to have a bigger say in the Judiciary. The unanimous recommendation made by the collegium of 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, 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 Subramanium eventually withdrawing his candidature.

However, a possible confrontation between parliament and the judiciary was avoided. For now.

On behalf of the judiciary, 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 (temporarily) dismissed by a bench headed by Justice Dave.

Lodha had always defended the dignity of the judiciary: it was Justice Lodha who issued contempt proceedings against the former Army Chief General VK Singh. During court hearings the General had cast aspersions on the motives of the court. Only an unconditional apology stopped Lodha from pursuing the contempt petition.

Lodha is a judge of high intellect who understood law within the political and sociological framework of our country. As a judge he realised that the Supreme Court’s primary obligation is of deciding on important questions of law.

Justice Lodha presided over nearly 10 constitution bench judgments, clearing lacunae 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 Subramanian 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 the judgment a necessity to strengthen the legal framework against political corruption.

Critics have argued to the contrary in the wake of nefarious revelations surrounding the director of the CBI and the CBI’s negative opinion of Gopal Subramanium. The Court also did not entertain arguments related to the possible stifling effects on executive policy.

Ironically, only a few months after this judgment, the hearing on the misdemeanors of the CBI Chief were marred by controversy. Counsel for CBI alleged the petitioners were “bench hunting”, that they had purposely dragged this issue into Lodhas court even though it was the subject matter of a separate bench. Counsel 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 then stated that he was glad to be retiring soon so he would not have to witness such proceedings in future.

Regarding the coal judgment, many legal commentators have argued that declaring blanket illegality momentarily threw an entire industry open to speculation. It was the decision of a confident central government that did not oppose the cancellation, which removed ambiguity on the issue. The affected rights of the private parties were only briefly heard. Counsel for the affected private parties argued that they acted in good faith and accepted the Government’s practice of allocation. Many have argued that the judgment should not have left the private parties to fend for themselves.

Lodha while dealing with under-trial detention, interpreted section 436A of the CrPC and directed all states to release all under trials who had already undergone detention for half the maximum period of imprisonment. It showed the chief’s commitment to constitutional morality and basic human rights, which was reminiscent of Prof Upendra Baxi’s post-emergency narrative of people-oriented judicial activism. 

In another writ petition, Lodha had issued directions to the Central Government to look urgently at the human rights of Pakistani prisoners, many of whom, despite the completion of their sentence, continued to languish in jail. Lodha also gave a landmark decision on extra judicial killings, further protecting fundamental rights of citizens, laying down stringent guidelines to be followed by the police.

A CJI of intellectual and moral integrity, as head of the final authority on rights guaranteed by our constitution, should inspire each of us, as legal professionals, to strive for upholding the goals of the constitution.

Chief justice Lodha, in his commitment to an independent and honourable judiciary and his idealism, certainly did just that, and more.

Abhik Chimni is an advocate of the Supreme Court of India

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