NEW DELHI: The retirement of Chief Justice R.M. Lodha marks the end of an era in India’s judicial history. This period 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. In The Subramanian Swamy case, protection of higher political functionaries from investigation was invalidated while in Lilly Thomas restriction on political participation of persons with criminal antecedent defined public debate. Hon’ble Justice G.S Singhvi, Hon’ble Justice A.K Patnaik and Hon’ble Justice K.S. Radhakrishnan all of who retired within the last year were important figures of this judicial epoch. What was particularly distinct about Chief Justice Lodha was his belief in “ideals”. A quality which sociologist Shiv Visvanathan describes wonderfully when writing about the influence of Nehru and Gandhi in the immediate decades after Independence. 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 importance of an autonomous Judiciary to a Democracy. However, the new Government seemed inclined to have more influence over the courts. The Collegiums unanimous recommendation of Mr Gopal Subramaniam 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 increasing media speculation Justice Lodha did not mince his words. He warned the Government that such interference is undemocratic and 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 was consequently dismissed by a bench headed by Justice Dave. Justice R.N. 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 a Judge of high intellect and understood legal issues within the framework of our economic and political realities. As a Judge he realised the Supreme Court’s primary obligations of deciding on important questions of law. Justice Lodha presided over nearly ten 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. Subramanian Swamy vs Director of CBI, Section 6A of DPSPE was struck down in view of Article 14 of the constitution. Immediately after the pronouncement Mr Prashant Bhushan 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 Gopal Subramaniam. During the hearing the Court refused to 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 Lodha’s 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. However, during the hearing the affected rights of the private parties were only briefly heard. The Counsels for the private parties argue that they acted in good faith and accepted what was 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 Baxi’s 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 within the larger sociological and political framework. 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.
(Chimni is an Advocate at the Supreme Court and had worked with with the Additional Solicitor General Of India during 2013-14)