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

Court Witness delivers his verdict on the chief
Court Witness delivers his verdict on the chief
A Chief Justice of India for 153 days is unlikely to leave a legacy behind. Somehow, this one did, explains Legally India Supreme Court postcard-writer Court Witness.

It takes a couple of months for a CJI to ease into the position and the last couple of months as a lame duck CJI is mostly about handing over the reins to the designated successor. With a six week summer vacation in between, not much was expected from Rajendra Mal Lodha’s stewardship of the Supreme Court.

Still, somehow, Lodha managed to pack into 153 days more than what many CJIs with much longer terms have been able to do.

In at the deep end

Right off the bat, his infectious enthusiasm for doing something perhaps got the better of his judgment (pun intended).

The idea of a 365-day-court sounds very modern, citizen-friendly and necessary. Yet, it ignores the reality of the state of the bar and the judiciary. One wondered if the CJI knew the vacancy position in the high courts and the lowers courts; if he knew the conditions in which some district courts were functioning; if he knew the state of the nation’s bar which has morphed beyond all recognition (probably for the worse) in the last two decades since he stopped practice.

In fairness, the idea is not bad in and of itself, but perhaps much too far ahead of its time and utopian given the immediate and pressing problems facing the justice delivery system in India.

Having started off on the wrong foot, Lodha perhaps did not expect what was about to hit him next.

As I’ve written before, the Gopal Subramaniam controversy came completely from left-field and took him by surprise. Though out of the country at the time, it’s somewhat surprising that he heard of the controversy only from the news reports.

While the judiciary normally doesn’t react to news reports, for a body that routinely treats news reports as the basis for writ petitions or the basis for contempt of court actions, it was a defence that didn’t sit well with a strong and assertive court. A quick, even impromptu statement calling out the Government’s “segregation” and an urgent return to India would have gone a long way.

By the time he returned and attempted to fix things, matters were out of his hands, and despite his best efforts, Subramanium had been borked.

At this point, realising that he was dealing with a Government that has just won a thumping majority in the elections and once in a generation mandate, he could have retreated and played it safe, not wanting to ruffle feathers.

He didn’t.

He delivered what can only be described as a stinging and public rebuke of the Government during the retirement function of Justice BS Chauhan. Judges rarely speak outside court and even rarer do they use a public platform to launch into the Government of the day.

Breaking his silence over the Gopal Subramanium saga, Lodha launched into a Churchillian “we shall fight them on the beaches”-style speech against the Government’s perceived interference in the judicial appointments process. Lodha sensed that he was going to be in for a fight and decided that he wasn’t going to back down, letting the Government know in as public a manner as possible.

Not a caged parrot

RM Lodha
RM Lodha

In hindsight, it should come as no surprise that Lodha was so outspoken. He was never one to mince his words while on the bench. On the bench deciding VK Singh’s date of birth petition, he had much to say and more to both parties. He called the CBI a “caged parrot” in open court during the Coal Scam hearings. He was a vocal judge, of whom one always got the impression that one heard the judge more than the lawyer in any given hearing.

His pronounced stutter, when he repeated words mid-sentence or stretched syllables, made him the favourite of mimics in our midst in the bar room, but I sensed that this was always more from (misguided) affection than any real malice.

Like Kapadia before him, he was difficult to argue before if you were not a senior advocate.

He did have his preferences for lawyers, particularly the style of presentation of the lawyers of the Bombay Bar, though in his case it was probably due to a genuine respect than a superiority complex. After all, he had served in the Bombay high court for the bulk of his career and had earned the respect of the demanding Bombay bar before returning to his native Rajasthan high court and then being elevated as Chief Justice of the Patna high court.

A collegium to be proud of

Even with a short term as CJI, Lodha sparkled as an administrator. After being knocked off his balance by the borking of Subramanium, he recovered his balance admirably for the rest of his term.

Chief among his accomplishments must be the appointment of two of the best lawyers around as Supreme Court judges. While lawyers form the bulk of judges appointed to the high court directly, lawyers appointed to the Supreme Court were few and far between.

Lodha managed the unprecedented feat of convincing his collegium brethren to appoint not just one, but two lawyers to the Bench just in his own terms If this interview is to be believed, he had plans to appoint more. However, it’s sufficient to say that both choices that did go through, Rohinton Nariman and UU Lalit, have been fantastic picks who will add much to the Supreme Court.

Even other than his appointees from the bar, faced with the Year of the Judgeocalypse and the prospect of a Supreme Court missing one third its strength in one year, Lodha and his collegium moved remarkably quickly in filling the vacancies in the short time available. Of the eight vacancies, Lodha manage to fill seven vacancies within a month of each other. Faced with the pressure of the proposed National Judicial Appointments Commission, Lodha and his collegium took it upon themselves to show that, aberrations aside, it could be made to work reasonably efficiently and effectively.

Lodha’s trinity

As a Chief Justice with one of the shorter tenures not only as CJI but also as judge of the Supreme Court (barely six years in total) Lodha doesn’t leave behind a vast body of case law with which to assess his jurisprudential legacy so to speak. Yet, the impact of at least three of his judgments will be far reaching and have implications beyond just the law laid down.

The first of these is the Subramaniam Swamy v CBI case, where he struck down Section 6A of the Delhi Special Police Establishment Act, which added a layer of protection to bureaucrats above joint secretary level, shielding them from CBI scrutiny. Enjoying almost bipartisan support in Parliament, Section 6A stuck out as a blister reinforcing a modern day caste system between bureaucrats and citizens. Grave spectres of frightened bureaucrats paralysed into inefficiency by the removal of Section 6A were raised repeatedly but dispelled by Lodha with the cold light of reason and the principle that no one is above the law.

The second is the earth-shattering (literally) coal scam judgment, holding the allotment process arbitrary and unconstitutional and cancelling 214 out of 218 allotments. Once again, spectres were raised of the dangers to the nation’s economy, the alleged “folly” of the 2G scam judgement, and the adverse impact on investor confidence, and the prospect of an India plunged into darkness as the furnaces grow silent for lack of coal.

Lodha would have none of that. He was willing to let the heavens fall if they must, but he would see justice being done to the citizens of India - the true, silent owners of the coal. In doing so, he belied the expectations of many a lawyer (including yours truly) that the court may adopt a cautious middle path to avoid criticism for “overreach”.

Sathasivam the Safe he isn’t.

In Bhim Singh v Union of India , the third of Lodha’s “legacy judgments”, we’ve probably seen the boldest judicial attempt to tackle the problem of undertrial prisoners. Far from setting out guidelines and leaving the matter to the executive to comply with, Lodha has put the onus of ensuring the releasing undertrial prisoners squarely back on the judiciary’s shoulders, even directing judges of the lower courts to conduct more sittings in prisons to ensure that under-trial prisoners receive their due.

One only hopes the Supreme Court will continue its efforts under Dattu in resolving the under-trial problem once and for all.

Rajput

Without indulging in too much cultural stereotyping, Lodha didn’t seem to fit the cliched image of a Marwari Jain: hard nosed, shrewd, and pragmatic.

He seemed more like a throwback to the other great Rajasthani cultural stereotype: the Rajput warrior.

Brave, almost to the point of foolhardiness, and always with an eye on defending his honour and his values, Lodha was unafraid of speaking his mind and following his convictions where others might have been tempted to hold their peace.

Whether this was the wise course, time will tell.

For now we can say for sure that he has indeed left the Supreme Court in a better place than when he took over. He has, in many ways, left it stronger and more ready to face the challenges coming its way in the years ahead.

Court Witness is an advocate of the Supreme Court of India and tweets @courtwitness1

Other Justice profiles of Court Witness Justice:

  • 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
  • India, meet your future boss: CJI-to-be Altamas Kabir vs SH Kapadia (profiled by Court Witness)
  • SH Kapadia mid-term appraisal: Crying Room Hercules cleans SC stables after dirty decades, only half-done
  • Supreme Court Postcard: Justice ‘Goldilocks’ Reddy should be sorely missed, not misrepresented
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