Law minister’s remarks are not an attack on collegium: Ex-CJI UU Lalit

Former Chief Justice of India (CJI) Uday Umesh Lalit, who retired last week after a short tenure of 74 days, speaks on his innings as CJI in a conversation with HT. Edited excerpts:

How was your tenure as CJI? What has been your biggest achievement; is there any big regret?

It was an enjoyable, memorable and wonderful occasion to be a judge in the highest court of the country. The icing on the cake was my tenure as the Chief Justice of India. My tenure as CJI gave me tremendous satisfaction as I not only could do something on the administrative front, but at the same time, I did not compromise my judicial work due to my administrative work. I could come out with administrative ideas that the body of judges in the court supported. As a judge, I never gave preference to hearing any matter and looked at all matters very dispassionately. I was completely taking stock of the situation whatever comes before you as some kind of a “karmyogi” in doing your work.

Do you think clearing of judicial appointments depends on the equation that a CJI has with the government?

I do not think so. It does not depend on the equation with the government. It depends on who are the persons whose names are recommended. The appointments are made by the collegium and not by the Chief Justice of India. The CJI is only an initiator. He initiates a particular name. If it is supported by the entire body of collegium, the name is recommended. At the initial stage, of course, he initiates a name. The moment the proposal fructifies, it is the proposal of the collegium. In my short tenure, I made a recommendation of only one person to the Supreme Court. That is still in the pipeline. The decision has not yet been communicated by the government on that. I can’t say that there has been a failure or something. There has been a decision taken. The matter is still under process.

During your tenure, twice, you sought opinion from collegium members without an actual physical meeting. This was a new procedure to which two judges objected. Do you think such a procedure augurs well for the institution and the process of judicial appointments?

Since I was not initiating the names for the first time, according to me, there was nothing wrong. Theoretically, none of the judgments says that the process has to be through the physical form in a meeting where everybody is present. So, there is nothing against that to have written versions or written opinions. According to me, the judgments do support that there can be opinions expressed in writing. There was nothing unusual about that. On September 26, during the discussion, other collegium members recommended something. The final figure in zone of consideration was 12 names out of which justice Dipankar Dutta (CJ of Bombay HC) was finalised and approved by the collegium. We progressively were meeting thereafter on September 28. So this was a continuous process. If the names are getting thrown for consideration for the first time, different kind of ideas may flow. But if the names are already under consideration, all that you require is a yes or no. Since the process had already begun, I wrote that letter (September 30). It is true that some of the judges did raise an objection to the issue of process. To my letter, two judges found those names perfect. They did not find anything wrong with the process. I wrote twice (again on October 2) not on two separate occasions but twice concerning the very same names.

When you found that two judges have objected to the procedure, how did you react to their objection?

Once they said there are objections, as stated in the resolution, the logical conclusion was that we must have a physical meeting. Unfortunately, that physical meeting could not take place, as by October 7, the Union law minister wrote a letter seeking recommendation of the next CJI. But when I wrote those letters (September 30 and October 2), they were much prior to October 7. One has to see the settings and facts and circumstances when I wrote those letters. Whatever they objected, they are entitled to their views. It has to be a collective decision. I wanted to explore that possibility, so I wrote to them.

You tried reforming the listing of cases. Regular, old matters were given priority of hearing. But soon, judges began to complain of heavy workload. This reform had to be aborted mid-way. Was it due to a lack of consensus between judges or is there any other reason?

It was not aborted. When I started as CJI, there were 30 judges. I divided them into six Constitution Bench combinations. There were 55 death reference matters which are pending. There were a number of three-judge bench matters which are pending. I devised a way of six benches of three-judge combination and six benches of two-judge combination. I thought that in this short span, I would like to list 25 Constitution Bench matters. Since the Constitution Benches started rolling, judges got blocked in a Constitution Bench. My term of 74 days had two holidays – Dusshera and Diwali breaks. So, in that preceding week (before festival breaks), we stopped giving regular hearing matters to the regular courts and started having these after-notice matters. There are 38,000 after-notice matters which are pending. It is not as if we aborted the idea. The idea is still there, the only thing is that everything has to have a dimension of time and the other dimension is possibilities.

Should a CJI have discretion in giving out-of-turn promotion to officers of their choice? Do you think this is an area of reform which future CJIs should think over?

The rules then need to be amended. When we think in terms of rule of law, we must be equally obedient to the mechanics which is before us. We cannot overshadow that.

Following the verdict in the 2012 Chhawala gang rape and murder case given by a bench headed by you, a lot of public sentiment was aroused over the acquittals. How will you react to these sentiments?

That is precisely why you give the decision-making to trained judicial minds. Why have we discarded the idea of a jury system. Jury is nothing but a cross-section of the entire society. We discarded it because at times, juries can get emotional. They can get driven by emotion. One has to see the law as it stands, apply it to the facts before the court without being guided by emotions. If that is the logic and that is what has to be taken, then to say that the judges are devoid of any emotion may not be correct. We do have emotions, but as a judicially trained mind, we know how to channelise the emotions. Going purely on the spectrum before you based on what is presented by a particular case, we decide within the four corners of the legal principles.

When collegium proceedings are reported in the open, several names under consideration are put out in the open. Do you think the confidentiality of collegium proceedings gets compromised?

We must realise these are all confidential matters. They are not for the eyes of the general public. If they have been leaked out, it’s a breach of secrecy… These are not letters which were written for anybody else except those four members who were forming the collegium… Every letter and envelope was marked ‘strictly confidential’. I did not take up the matter (with the members of collegium) as by the time we reopened (in October), the matter had assumed a different complexion.

The Union law minister recently termed the collegium as opaque and not accountable. Since these views were expressed while you were CJI, how would you react to such statements?

In this democracy, everybody is entitled to his viewpoint. The law minister is also entitled to his viewpoint. It is his individual viewpoint. It was not an attack on the collegium.