When we look back at the brief, four-month legacy of Chief Justice UU Lalit, the ending of The Dispossessed is perhaps an appropriate framework to think through what has happened. It is true that four months is but a wrinkle in time. It is also true that these are four months in which a lot has happened. The live-streaming of Supreme Court proceedings, the setting up of Constitution Benches, regular listings and mentioning, and the resurrection of cases long in cold storage are all things that people will point to when assessing the Chief Justice’s legacy. Undoubtedly, when it comes to the administration of the Supreme Court, as an institution, the brief, flickering tenure of CJI Lalit has accomplished significantly more than all of his immediate predecessors, put together.
But in my mind, we must begin with the extraordinary events of October 14 and 15, 2022. On October 14, the High Court of Bombay handed down a judgment acquitting G.N. Saibaba and five others in a case under the Unlawful Activities Prevention Act [“UAPA”]. The basis of the High Court’s judgment was that a vital procedural safeguard under the UAPA – the requirement of a sanction to prosecute, following an independent review of the evidence by the appropriate authority – had not been adhered to. Consequently, everything that came after – including the trial – was a nullity. In the result, Saibaba and five others – who had spent more than five years in jail at the time of writing – were to walk free.
The High Court’s judgment, however, carried a significance beyond simply the liberty of six individuals. By now, the weaponisation of the UAPA for political repression has been well-established. Its loose language and onerous bail provisions – facilitated by pro-executive judicial interpretation – have enabled the extended incarceration of individuals (including political opponents) for months and years, as well as the occasional conviction on flimsy grounds (Saibaba himself being an example). In this background context, the Bombay High Court’s order sketched out a crucial line in the sand: if the State wanted to prosecute under the UAPA, it would have to go by the book: the statute’s procedural safeguards would need to be complied with to the letter. Thus, the High Court’s order was, in essence, a judicial pushback against State impunity: Saibaba and his fellow prisoners were to be set free because the State had failed to meet the requirements needed to trigger the draconian, substantive provisions of the UAPA.
That freedom, however, turned out to be an illusion. That same evening, the case was “mentioned” before the still- sitting bench of Chandrachud J. Chandrachud J. correctly observed that there was no tearing hurry to list an appeal against a reasoned judgment of acquittal/discharge, and nor could such a judgment be stayed for the asking. But of course, the State then had the liberty to approach Chief Justice Lalit for an urgent listing, which it did. The Chief Justice complied. The case was listed the next morning, which was a Saturday morning (a non-working day at the Supreme Court), before a “special bench” of Justices MR Shah and Bela Trivedi (what is it with our Chief Justices and these Saturday morning listings?). It is important to note that these two Justices did not normally sit together, and Justice MR Shah did not normally handle the criminal roster.
After a hearing, this bench of the Supreme Court “suspended” the Bombay High Court’s order, on the basis that the offences were serious, and that the High Court had not considered the “merits” of the case (instead proceeding on the technicality of sanction). As a result, despite having a hundred-page reasoned order of a constitutional court sanctioning their liberty, the six prisoners (one of whom – GN Saibaba – is 90% disabled) were condemned to stay in jail.
As many, many people have pointed out, the Supreme Court sitting on a Saturday morning to “suspend” an order of discharge/acquittal, and keep people in jail was historically unprecedented. Indeed, there is something profoundly disturbing about the Supreme Court holding special Saturday morning sittings against individual liberty (as a certain senior counsel who often represents the State
is fond of saying, “would the heavens have fallen” if the Supreme Court had waited until the next working day?). But even more troubling is the manner in which this “special” bench trashed the vital procedural safeguards under the UAPA as mere technicalities. While the High Court had drawn a line in the sand against State impunity, the Saturday morning “suspension” reads like a paean to State impunity, not only in its reasoning, but also in the outcome: pending consideration by the Supreme Court of the “larger issues” involved, despite having a High Court judgment in their favour, GN Saibaba and others will stay in jail.
Now, the question, of course, is what responsibility does CJI Lalit bear for this? Naturally, the primary responsibility lies with the authors of the order – Shah and Trivedi JJ. However, as I have written previously – in my assessment of the legacy of CJI Ramana – when we consider the record of a Chief Justice, we need to consider their actions as the “master of the roster” – i.e., the position that gives them unlimited and arbitrary power to decide when a case will be heard, and who will hear it. The opacity with which the Office of the Chief Justice operates means that we will not know how, precisely, this decision was made, and what the reasons for it were. However, what we do know is:
The extraordinary decision to list the State’s appeal against a reasoned order of acquittal/discharge on a Saturday morning – before the High Court’s order could be implemented – was CJI Lalit’s decision, made in the exercise of his powers as master of the roster. I have questioned the urgency above; here, I will add that, for a variety of reasons, Courts generally tend not to send released people back into jail; however, it is significantly easier for a Court to suspend an acquittal/discharge which has not yet been implemented, and when the individuals involved are still in jail. The Saturday morning order accomplished precisely this. The decision to list it before a “special” bench of two judges, who did not normally sit together, one of whom was not normally on the criminal roster and who – indeed – was previously on record making statements that have raised serious concerns about the separation between the judiciary and the executive, was likewise a decision made by CJI Lalit. It is true that the roster is not always followed to the letter, and is subject to the orders of the Chief Justice, but that only amplifies the point I am making here.
As I have written previously, in a poly-vocal Supreme Court with more than twenty-five members, there will be some judges who will be reflexively pro-State in matters of individual liberty, and there will be other judges who will be reflexively pro-individual. While there is nothing untoward about this – judicial ideology is inevitable, and is distributed across the Court – it is here that the powers of the Chief Justice as master of the roster – the power to assign cases – turns into a power to significantly influence the outcomes of cases. This is specifically borne out by the fact that on Friday evening, Chandrachud J expressed severe reservations about the Supreme Court “suspending” a reasoned High Court order of acquittal/discharge, but the next morning, two other Justices saw no compunctions in doing so. When you add to this the extraordinary Saturday morning listing and the composition of a “special” bench for just this case,
the upshot of all this is that CJI Lalit’s actions as the master of the roster on the 14th of October 2022 had a significant and non-trivial impact on the extraordinary judicial denial of liberty to GN Saibaba and five others. For that reason, notwithstanding the fact that he did not personally sit on the bench, the circumstances in which this order came about must play a significant role in the assessment of his legacy, as he leaves the Court.
For it is an order that characterises the executive Court at its worst: a Court that speaks the language of the executive, and that has – for all practical purposes – become indistinguishable from the executive. So if you were to ask yourself that basic question: did CJI Lalit leave the Court better than he found it, the events of October 14 and 15 must have their say: and what they say is that when it comes to the crunch, when the stakes are high, the Supreme Court is still an executive Court, and indeed, perhaps even more of an executive Court than it was before: because now not even reasoned High Court judgments setting people free from jail are safe from being “suspended” in under twenty-four hours.
But then you may ask: what of the balance sheet? What of the other things that CJI Lalit did as Chief Justice, which I flagged at the beginning of this post, and which will no doubt feature heavily in the encomiums that accompany a judicial retirement? He granted bail to Teesta Setalvad and Siddique Kappan, two of the more egregious cases of State impunity in recent times. He listed many cases (although, like his predecessors, he steered clear of listing the Article 370 challenge, and – regrettably – downgraded the electoral bonds challenge to a two-judge bench). He set up many Constitution Benches (one of which even resulted in a judgment on the day of his retirement, albeit in favour of the State). He kick-started the live-streaming of court proceedings.
These are all good things, no doubt. But does organisational competence make up for the deprivation of freedom, as if the two things form part of the same currency, to be traded against one another? Or is freedom itself a tradable commodity, where bail to one individual justifies keeping six others in jail? Is not a live-streamed executive Court, which sits on a Saturday morning to suspend an order of acquittal/ discharge, still an executive Court? And so then, at the end of the day, when considering the “good” that Lalit CJI did, we are left to ask ourselves the question that Shevek asked the Terran ambassador:
Weigh it in the balance with the freedom of one single human spirit, and which will weigh heavier? Can you tell? I cannot. This article was first published in the Indian and Constitutional Law Philosophy Blog: https://indconlawphil.wordpress. com/2022/11/07/the-freedom-of-one-single-human-spirit-on- the-legacy-of-chief-justice-uu-lalit/
The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.