'Heavy burden is on the CJI'

RAJENDRA MAL LODHA was the 41st Chief Justice of the Supreme Court. Appointed to the Supreme Court as a judge on December 17, 2008, he became the Chief Justice of India (CJI) on April 27, 2014, and retired on September 27, 2014. He had served three High Courts—as a judge in Rajasthan and Bombay and as Chief Justice in Patna. Justice Lodha shared his unique insights into the issues facing the judiciary today in an interview to Frontline . Excerpts:

The current crisis in the Supreme Court began with the controversy over the issue of case allocation by the CJI in his administrative capacity. Did you come across any dissatisfaction among judges over the manner in which you allocated certain cases as the CJI?

Not at all. Everyone knows that the Chief Justice allocates cases and that he is the master of the roster. But I never acted arbitrarily. In a sense, we have, by and large, a computerised system. So benches are formed, and accordingly work assignment is given to each bench. For certain cases, of course, the registry would seek instructions from the Chief Justice. I had a clear policy.

In all those matters in which the registry came to me for direction in case allocation, I went exclusively by seniority. So there was no problem. I wished to ensure fair distribution in case allocation so that everyone had every type of work. All judges in the Supreme Court are equal. In a way, it is right that there are no junior or senior judges. But seniority has its due, because it is the senior judge who presides over the bench. So I would go over these matters by seniority. There was no dissatisfaction at all. Not even for a single case. So objectivity was maintained, fairness was maintained. Equal distribution was maintained.

The Supreme Court follows a practice. When there are high-profile cases and cases relating to the judiciary and important constitutional issues, the registry would place them before the Chief Justice [for directions for listing before a particular bench].

In such cases the roster (classification of cases subject-wise to be heard by different presiding judges) is not followed?

That is for the Chief Justice to decide. Normally, I don’t see any problem in not following the roster. Maybe in certain cases it happens that the bench or the judge will not take up the matter. There may be diverse reasons for that. In my time there was—and quite a few Chief Justices had—a self-contained scheme. If a particular judge was not hearing a matter, then the matters accepted before him would go to a particular bench. But it is case-specific. There are general instructions that if a judge is not hearing a particular matter, it will go to a certain judge. It is the usual practice. This is the first time that I am seeing a lot of heart-burning and dissatisfaction among senior judges on this issue.

The trigger for the January 12 press conference by four senior judges was apparently provided by the action of the CJI in transferring part-heard sensitive matters before them to another bench. Do you think it was improper to do so?

The Supreme Court has a definite practice. The practice is that if a senior judge of a bench has dealt with a matter, then that matter would always come before a bench headed by the senior judge, even if the other judge or judges sitting with him are not there. If the senior judge retires, then the second senior-most judge who was part of that bench would hear the matter. The practice has either been discontinued or not followed strictly. It is unusual that cases already taken up by a particular bench are withdrawn. It does not happen usually. Under what circumstances the CJI did so, I cannot comment, because I am not aware [of the facts].

Did you have to deal with differences of this nature when you were the CJI?

Differences will always be there, but not of this gravity and intensity. By discussion, you know. If you have respect for each other in the institution, and if you find merit in the point that your brother or sister judge makes, because there is logic in it, a solution is found. If that is the understanding, and you try to articulate [your view] after considering all views, I don’t think there is any difficulty. I didn’t face any difficulty.

The present CJI is the first one in the juridical history to face an impeachment motion. The Rajya Sabha Chairman’s dismissal of the motion submitted to him by MPs has caused a controversy. Your comments.

I am not on the merits of the allegations [against the CJI]. They will continue to remain as allegations because they have not been scrutinised in a proper way by anyone at any point of time. Now MPs may have thought they have the requisite number at least to put up a motion for impeachment. But Justice J. Chelameswar himself has said that impeachment is not the remedy. More so because the fate of such a motion was known from day one as it did not have the numbers to carry it through. Political parties have their own way of looking at things. Under the Judges (Inquiry) Act, the Chairman [Rajya Sabha] or the Speaker [Lok Sabha] has to take a call. If someone is not satisfied and wants to challenge the Chairman’s order, it will be tested in a court of law.

In the current controversy over the Centre returning a recommendation of the collegium for its reconsideration, was the Centre correct in segregating a recommendation of the collegium without its consent?

A similar thing happened in 2014. When I became the Chief Justice, in consultation with the collegium I finalised a list of four—two members of the Bar and two High Court Chief Justices. Accordingly, we recommended four names. Controversy unfolded over the name of Gopal Subramanium. His name was segregated and referred back to me for reconsideration. The other three names were through. I was at that time out of India. When I came back I found Gopal Subramanium’s file on my table, and warrants of the three judges had already been issued. I first called Gopal Subramanium and wanted to know from him if he was firm about withdrawing his name.

After a long deliberation, he sent me a four-line note saying that his decision was final. That very day, I sent a letter to the Law Minister after consultations with the collegium. I said segregation should not happen. The collegium considers names and sends a list comprising more than one person. The collegium knew who was more senior to him, whether he was in line to become the Chief Justice of India or the Chief Justice of the High Court as the case may be. All these factors are taken into consideration. Ultimately, since the collegium has the primacy, any change in the thought process of the executive at its level cannot be unilateral. It has to be in consultation with the Chief Justice or with his consent. I objected to the government that segregation ought not to have been done and should not be done henceforth. And it was only after I sent the letter and Gopal Subramanium clearly said that he was not going to have a rethink [his withdrawal] that the other three were sworn in.

The memorandum of procedure [MoP] does not say anywhere that segregation cannot be done. But in the scheme of things, if you say that the collegium or the CJI has primacy, and if at all some names are to be segregated, it is an integral component of that primacy. So, if a name has to be segregated, it has to be in consultation with the Chief Justice. When I say the Chief Justice, obviously, it must be in consultation with the members of the collegium.

Ultimately, it is a consultative process. The government can always say, you have sent us this list. We have problems about this person. If you want, we go ahead with the persons with whom we have no problem or you first give your viewpoint about this man against whom we have some doubts. So it is not an iron curtain, as if we do not talk to each other. If there is any problem, there can always be communication.

In this case, the Centre has taken a view that the principle of seniority was ignored by the collegium, and a small State like Kerala was given over-representation. Besides, candidates from the Scheduled Castes and the Scheduled Tribes were not recommended, it has underlined.

These factors are taken into consideration while making recommendations. But there is no absolute rule that only senior judges would be appointed. All along, merit has been the overriding factor. Seniority is always considered. When names are finalised, the entire seniority list is before the collegium. Over-representation is a misnomer. These are kept in view. Bombay always had three judges in the Supreme Court. Kerala once had three judges in the Supreme Court. It is kept in mind that every State is represented. After it is considered, these objections do not cut much ice.

If Scheduled Caste and Scheduled Tribe candidates are not available, how do you bring them? Similarly, women’s representation is a big problem. Fifty per cent of our population consists of women. But in High Courts, not even 10 per cent of the judges are women.

But the number of women lawyers has gone up significantly.

The number of women in the zone of consideration has not been sufficient.

What should be the role of the CJI in the current crisis?

An institution like the Supreme Court is based on credibility. The recent incidents have shaken the confidence of the people in the institution. This is the most damaging part. It is for the CJI and, of course, the collegium to understand. Heavy burden is on the CJI. The first step has always to be from him. He has to guide the people to find a solution.

In the United States Supreme Court, the opinion assignment function is important. The Chief Justice, after hearing a matter, decides who will write the opinion of the court. Obviously, some cases are interesting, and some are important. Opinion is the view of the court. Therefore, how a view is articulated and spelt out is very important. Every judge would like that in an important or interesting matter, he or she becomes the author [of the opinion of the court]. Therefore, it is the obligation of the Chief Justice to ensure that there is fair distribution of opinion assignment function. Felix Frankfurter, who worked under four Chief Justices, summed up the opinion assignment function thus: “It is the prerogative of the Chief Justice not only to be kind, fair and generous in the distribution of cases, but also to appear to be so.”

The present Chief Justice of the U.S. Supreme Court, John Glover Roberts Jr., is on record as having said that each judge should have a right mix of cases for opinion writing. Instead of opinion assignment function, you read here the case assignment function. You have to be fair and objective in the distribution of cases. If all judges are equal, why can’t there be fair distribution?