New Delhi: One wears a smile on his face, another does it seldom. One speaks, the other just nods but they are always on the same page.
It is only when they set about asking questions and dictating orders, one gets an idea of how tough these two judges are in the Supreme Court.
Sitting in one corner of the Supreme Court complex – topographically, Court number 11 has perhaps become one of the most important courtrooms in the recent past.
Justice Adarsh K Goel and Justice Uday U Lalit, the two judges who constitute a bench in Court number 11, have come to characterise landmark orders, quick decisions, razor-sharp scrutiny and the confidence that judges of the highest court in India must possess.
When a lawyer argues, what he needs to deal with is an experience of almost 30 years each of the two judges as advocates, and a volley of questions that would find marked in the judges’ files. You hand out the correct answers, and it will not be years or months or even days before you have a propitious order in your hand.
Poised and resolute, the judges pass orders with a rare promptitude once they are satisfied with the facts, irrespective of how controversial or contentious a case could be.
In the last 15-odd months, this bench has touched upon subjects and issued orders which have more often than not witnessed only adjournments and refrain by the judiciary. The judicial determination by these judges, however, invariably goes down to the wire.
CCTV CAMERAS IN COURTS, TRIBUNALS
It was a bold decision by Justice Goel and Justice Lalit, which made judiciary shed years of reluctance to let cameras enter its courtrooms.
In March 2017, this bench ordered the installation of CCTV cameras in at least two districts of all states and union territories to record court proceedings. The judges clarified that the process had to begin with two districts and only then others would emulate.
What weighed in the minds of the judges was transparency and better case management.
Notably, the order on the judicial side came after several rounds of deliberations between the Centre and the top judiciary had failed.
Since August 2013, Union Law Ministers have written to the then Chief Justices of India at least thrice to consider recording the court proceedings in the interest of transparency, security and improved case management.
But SC judges demonstrated reluctance during the last communication in August 2016 telling the government that they felt a “wider consultation” was necessary before the final decision.
Not just this, many PILs demanding audio-video recording of proceedings had also been dismissed in the past, even though Law Commissions have made recommendations favouring it.
All this did not deter Justices Goel and Lalit to take the historic step.
DEADLINE FOR BAIL AND TRIAL IN LOWER COURTS TO CUT BACKLOG
“Judicial services are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. There are obstructions at every level in enforcement of right of speedy trial... in spite of all odds, determined efforts are required at every level for success of the mission. Ways and means have to be found by constant thinking and monitoring. Presiding Officer of a court cannot rest in the state of helplessness.”
This is what the judges underlined when they framed an “action plan” for quick disposal of cases. In an unprecedented order, this bench set a deadline of just one week for deciding bail applications and two years for disposal of all serious crime cases by a sessions courts. The court further said that trials pending for five years or more should be decided by the end of 2017.
According to records, there are more than 43 lakh cases which have been pending for five years or more at the end of 2015, while 3,599 undertrials have been in custody for more than five years.
Referring to these statistics, the judges, in their judgment in March 2017, maintained said that an action plan has to be put in place with targets to be achieved by judicial officers, which will be reflected in their annual confidential reports (ACRs).
TECHNOLOGY, VIDEO-CONFERENCING IN MATRIMONIAL CASES
Aimed at providing equitable justice to both husband and wife, and employment of technological tools in making justice accessible to all, the judges directed that video-conferencing be preferably used when an estranged couple live in different cities while fighting an array of matrimonial cases against each other.
According to Justices Goel and Lalit, video-conferencing was an efficacious alternative method to transferring the trial to one place, which may not be convenient to either of the parties.
“In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases, where one of the parties resides outside court’s jurisdiction is one of such categories,” the bench held in an order in March.
This order, though, was later set aside by a three-judge bench with 2:1 majority. On being referred by another two-judge bench, a larger bench presided over by Chief Justice of India Dipak Misra, reviewed this order.
The CJI, along with Justice Khanwilkar, held that a trial video-conferencing would lessen chances of reconciliation between the parties, besides not being in sync with the provisions of the Family Court Act, which prescribes in-camera hearings.
The third judge on this larger bench, Justice DY Chandrachud strongly supported the views taken by Justices Goel and Lalit. “Should this court even attempt to put a lid on the inexorable movement towards incorporating technology? If we do so, we risk ourselves being left behind as an anachronism in a digital age,” he maintained.
Significantly, Justices Goel and Lalit have also not felt absolutely constrained by the majority view of the larger bench.
While dealing with transfer petitions, this bench has started recording undertakings by the parties that they would not object to trial through video-conferencing, which means such matrimonial trials will incorporate technological tools after all.
ABUSE OF ANTI-DOWRY LAW AND NO AUTOMATIC ARREST
Concerned with the gross abuse of Section 498A in the IPC wherein not just the husband but all his family members are ordinarily roped in by a woman complainant, this bench decided to bell the cat.
“To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the trial courts concerned being sensitized,” the judges held in their July 2017 order, as they issued a string of directions to prevent the abuse.
The bench directed that no arrest should “normally be effected” without verifying allegations as “violation of human rights of innocents cannot be brushed aside”, which may also ruin chances of settlement.
The Justices ordered for the constitution of family welfare committees in every district. These committees would first vet the complaints received by police or the magistrate under Section 498A. No arrest can be made before this committee expresses an opinion on the veracity of the complaint and even during the trial, the trial court should dispense with personal appearances of all family members on each and every date of hearing. Trial courts were also ordered to permit appearance by video conferencing and the training of police officials dealing with dowry harassment cases.
This order met stiff resistance from various women rights groups, which even organized protests in front of the Supreme Court complex. Many lawyers also questioned the rationale of issuing directions in a criminal trial case and raised apprehensions that it would further dilute the anti-dowry law.
But Justices Goel and Lalit have stood firm on their decision. In several such cases that they heard after issuance of the directive, the judges have inquired about the constitution of the family welfare committees and training of police officials.
However, in an intriguing twist, a bench led by the CJI has also questioned the directions issued and in a separate case, CJI Misra has said that he would consider this matter as well.
FORCIBLY PERPETUATE MATRIMONY, WHEN IT HAS BROKEN DOWN IRRECONCILABLY
Should the Supreme Court acknowledge irretrievable breakdown of marriage as a ground for divorce and pass a decree without the mandatory 18-month period of separation?
For years, this question has been bothering Supreme Court judges. Some judges grant divorce exercising their power under Article 142 of the Constitution even while the Hindu Marriage Act made it mandatory for couples to stay apart for at least 18 months before parting with mutual consent, others refuse to do so when the Act provides for otherwise.
This quandary was finally put to an end by Justices Goel and Lalit, who by a ruling in September 2017, cut down the waiting period for divorce by six months in cases of divorce through mutual consent.
The bench underlined that Section 13B in the Act (divorce through mutual consent) was enacted to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down, hence forcible perpetuation of status of matrimony between unwilling partners would not serve any purpose.
It said that the object of the cooling off period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled. "The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation," noted the bench.
The Court acknowledged that every effort has to be made to save a marriage but pointed out that "if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option."
'ASTRONOMICAL' LAWYERS' FEE VS ACCESS TO JUSTICE
The Supreme Court happens to be the spot for high-stakes, high-pitched battles and the top lawyers are the ones running the show. Designated senior lawyers bring in their expertise with a fancy six or seven-figure fee. Interestingly, all these big cases would witness less than two dozen such lawyers appearing and arguing, which would a testimony of their mandate and explain why they would cost a bomb.
Not many judges would want to question the fee such lawyers charge but Justices Goel and Lalit are different.
In a judgment in December 2017, they supported the idea of putting a ceiling on the lawyers’ fee. The judges said that it was a barrier to access to justice and deprives poor litigants of suitable representation in courts.
Citing the ‘astronomical’ fee being charged by top lawyers, the bench was critical of this developing into a culture and permeating down. The duo underlined that lawyers must remember their duty under Article 39A of the Constitution, which provides for ensuring equal opportunity for access to justice.
“First step should be taken to prescribe floor and ceiling in fees.... Mandate for the Bench and the bar is to provide speedy, inexpensive justice to the victim and protect their rights. The legal system must continue to serve the victims of injustice,” held the judges, as they urged the Central government to step in and consider a legislation to help the litigants get suitable representation.
Justice Goel, the eleventh judge in terms of seniority, was sworn in as a judge in the Supreme Court in July 2014. Justice Lalit was appointed a month later.
Their three-year-long stint, however, has been a testament of self-assurance and buoyancy the Supreme Court of India has to exude.
Mere disposal of a dispute should not be the only concern for judges of the apex court. Efficiency in the administration of justice and its delivery by the system called ‘court’ should be the larger area of concern for the judges. The Justices have been endowed with the authority under Article 142 of the Constitution to pass any order “for doing complete justice”.
By their various orders, Justices Goel and Lalit have demonstrated a will to bring about positive changes in the justice delivery system.
Their orders have been questioned, criticised and even modified by a larger bench, but they have taken everything in stride when it comes to walking the extra mile for enhancing the competence of the justice dispensation system and adopting a modern outlook.