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HL Dattu: A CJI in a hurry to nowhere or saviour of the judiciary?

As Chief Justice of India (CJI), Justice HL Dattu appeared to be a man in a hurry. However, despite having held the office for a near eternity compared to many other recent CJIs, what he has managed to achieve as a judge and administrator in that time is questionable.

Justice Dattu held office as the CJI for 14 months from 28 September 2014 to 2 December 2015. His record as a high court judge dating back to 1995 when he was appointed as a judge in the Karnataka high court, and later as chief justice of Kerala and Chhattisgarh high courts, before being elevated as the Supreme Court judge in 2008, would require a much closer scrutiny of his judgments.

Man with a mission

Dattu’s actions as CJI suggest a strong inclination to reduce pendency in the apex court.

This led him to hear more miscellaneous cases, even on regular non-miscellaneous days, when the court has a tradition of hearing serious arguments from counsel, to dispose of pending matters.

But his eagerness to dismiss cases at the preliminary stage has led to curious results.

Every day, Dattu used to hear around 70 miscellaneous cases in the first half, of which the last five or six would invariably be fresh public interest litigations (PILs), and the petitioners appearing and arguing in person would always be listed as the last.

After hearing the counsel and the petitioners at length, Justice Dattu would, in most cases, utter the word “dismissed”, before the counsel concerned would often hasten to amend it as “withdrawn” so as to keep their future legal options open.

Rarest of rare constitutional benches

It is this apparent obsession with reducing the pendency of cases, which led him to go slow on setting up constitution benches to hear important cases.

He admitted in open court that he could not spare nine judges to decide whether the right to privacy is a fundamental right, although the determination of the issue was crucial to decide whether the Central Government’s Aadhaar scheme is constitutional or not.

For a lay person, sparing nine judges in a Court with a strength of 31 Judges is not a big deal; for Dattu, sparing nine judges may have raised the spectre of pendency of fresh cases filed every day and regular hearing of cases before at least four benches delayed.

This also raises the question whether the CJI, who is the master of the roster, should perhaps be more concerned with the quality of justice and resolving serious constitutional issues, which have either slowed down governance of the country or limited citizens’ potential to enjoy their fundamental rights.

Pendency results: Undisclosed, net gain zero?

The results are still unconclusive, as ironically for a CJI with an eye on pendency the Supreme Court has stopped publishing any pendency statistics after only six months of Dattu’s term: from March 2015 its website has not published any pendency statistics.

As at 1 September 2014, around the start of Dattu’s term, 65,414 cases were pending, including 35,174 miscellaneous matters.

In part no doubt assisted by an almost full Supreme Court with few retirements and vacancies, by 1 March 2015 apex court pendency had decreased to 61,300 cases, of which 33,182 were miscellaneous.

But any early pendency gains of Dattu appear to have been undone by the end of his term: on 22 November 2015 Supreme Court judge Justice Madan B Lokur was quoted in the press with an apex court pendency figure of 65,000.

However, until authoritative information is made available, that chapter in Dattu’s record may still have to be finally written.

Majority opinions

His refusal to hear a case relating to female Muslim students’ right to wear hijab during an examination conducted by Central Board of Secondary Education, on the ground that deprivation of this right for a few hours would not matter in the interest of maintaining integrity of the examination system is a case in point.

The counsel for the petitioner, Sanjay Hegde, had to withdraw the petition, so that the high court’s limited relief to the petitioner could continue.

Dattu’s lack of sensitivity to his colleague, Justice Kurian Joseph, who had objected to holding a court-related event during the Easter holidays was another instance whether Dattu shared the majoritarian outlook, rather than go out of his way to allay the apprehensions of minorities.

And judgments such as his decision to grant bail to Tamil Nadu chief minister J Jayalalithaa, were hard to categorise or explain.

Human touch

Nevertheless, Dattu was known for his humanistic approach towards the justice system.

His request to a bank to relax the deadline for accepting an application for a job from a candidate, because her illiterate grandmother missed the deadline, his compassion for the inmates of a psychiatric facility for children which he visited and his justification for permanent job status for all temporary contract jobs employees in the high court of Chhattisgarh, where he served as the chief justice, are all instances of his humanistic judicial philosophy, which would stand him in good stead if and when he becomes the Chairman of the National Human Rights Commission.

Dattu is on record as having said that he considered the former CJI, Justice S Rajendra Babu as his guru.

As CJI, Babu held office for less than a month in 2004, and as the chairman of the NHRC, he was in office for more than two years.

Whatever Babu’s accomplishments as a judge, his stewardship of the NHRC is not generally considered as role model-worthy by human rights defendants, who considered his tenure lacklustre.

Legacy 1: Adjournments

As CJI, Justice Dattu left two important legacies. He is credited with reforming the then prevailing practice of seeking oral adjournments by counsel with the mandatory circulation of letters two days in advance of the listing of a case, although his court has often been sensitive to genuine instances, when letter circulation by the counsel in advance was found impractical, due to sudden illness of a counsel or a close relative of the counsel.

Legacy 2: Social justice bench

The other reform is the setting up of the social justice bench, comprising justices Madan B Lokur and UU Lalit.

The bench has been hearing, on an average, about six or seven cases every Friday afternoon, and has been passing interim directions, if there is any merit in the prayers of the counsel in many PIL cases before it.

The bench, most counsel say, helped to bring together many PIL cases being heard by different benches, although related to each other in terms of the subject matter, and ensure their speedy hearing with monitoring by the bench on a regular basis.

This is not to suggest that other benches no longer hear PIL matters. They do. But most PIL matters now get listed before the social justice bench, and this has helped litigants and counsel to better coordinate their efforts, and pursue the matters in terms of the court-determined calendar of cases.

Legacy 3: Executioner in chief

Dattu and the apex court he presided over also holds the controversial distinction of having curtailed and toughened the fight of anti-death penalty campaigners, with Dattu having personally confirmed the death sentences of 10 persons, a near-record for CJIs.

Unusual was also the Supreme Court registry’s strong reaction via press release to the resignation of its deputy registrar, Anup Surendranath, who, as the founder of the NLU Delhi death penalty litigation clinic, had objected to its treatment of death penalty cases and in particular its role in the execution of convicted terrorist Yakub Memon.

Memon’s final appeal was dismissed by a bench constituted by Dattu in the dead of night, only hours before his rapidly scheduled dawn execution.

- Read Memon’s lawyers’ account of the night here.

Correction: The originally published version of the article erroneously stated that Dattu himself had rejected Memon’s final appeal. We regret the error.

The NJAC impasse

On the whole, it is hard not to feel that Dattu’s 14-month term will end up being remembered as a wasted opportunity, though his fans would be correct when pointing out that Dattu’s tenure was dominated by something outside of his control and bigger than any individual judge - the impending death of the collegium system.

Dattu refused to remain on the sidelines though. CJI Dattu’s refusal to sit on the selection committee to choose the eminent members of the now-defunct National Judicial Appointments Commission (NJAC) must surely be considered as one of his most controversial decisions.

Although he may now stand vindicated because of the Supreme Court constitution bench’s decision to strike down NJAC as unconstitutional, his action at that point in time, when the bench had not stayed the NJAC, had invited critical comments.

As the judiciary is part of the modern state, can the judicial head abstain from the affairs of the state, unless there are valid reasons backed by the Constitution or any other relevant law, is the question asked by his critics.

However, on philosophical grounds the strongest opponents of the NJAC may long-remember and thank Dattu as the man who secured the independence of the judiciary in the face of what must have been unimaginable pressure.

Previous CJI’s report cards:

Lodha the Brave, a CJI for the ages & coming storms: Court Witness’ definitive report card

As good as it gets? Court Witness’ CJI report card on Sathasivam the Safe, a remarkable Chief Justice

Benefit of hindsight: Court Witness on SH Kapadia’s baton

Photo by Prathyush Thomas

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