A statement recently made by former Chief Justice of India (CJI) UU Lalit regarding how the GN Saibaba case was listed before the Supreme Court on a Saturday seems to have added to the mystery, as opposed to clearing the air.

In a recent interaction with press, Justice Lalit said that there was nothing unusual about the listing of the case on October 15, a Saturday.

The Supreme Court usually does not hear cases on Saturdays, but the appeal filed by the State of Maharashtra against the acquittal of former Delhi University Professor GN Saibaba in a case where Maoist links were attributed to him, was heard on an urgent basis on a Saturday.

This was pursuant to the listing of the matter on directions by then CJI Lalit.

However, in a departure from the usual practice, the matter was not mentioned before CJI Lalit for urgent listing. Instead, the State of Maharashtra had mentioned it before Justice DY Chandrachud, as CJI Lalit had risen from court early that day.

During the mentioning of the matter, Justice Chandrachud had taken an unfavourable view when the State asked for listing the matter on Saturday.

Justice Lalit said in the interview that he was not aware of the adverse remarks made by Justice Chandrachud against listing of the case on a Saturday, since the order did not contain any such adverse observations.

"I was not aware because the registry officials simply came to me and said that there is a bench to be formed," said Justice Lalit.

He also said that Justice Chandrachud, who had made oral remarks on October 14 against listing the case on Saturday, never said anything about that when then CJI Lalit asked him whether he would be part of the Saturday bench.

"No, he did not say that. In fact, I asked him will he be part of the bench on Saturday. He said he had certain commitments," Justice Lalit said.

Specifically on the Saturday listing, CJI Lalit said,

"If the order had actually recorded the submission that if the urgency is there, then Saturday bench can be convened. Therefore, the order said that. Therefore, I convened the bench."

The former CJI's statements, however, do not lend clarity to what transpired, because the order passed by Justice Chandrachud simply records,

"The Solicitor General states that he will move an application before the Registry for obtaining administrative directions of Hon’ble the Chief Justice for listing of the Special Leave Petition tomorrow (15.10.2022)."

Before proceeding to analyse the CJI's statements, it is important to look at a timeline of the events as narrated by the CJI and as can be deduced from the order as well as media reports.

Timeline

October 14, Friday 10:30 am: Nagpur Bench of the Bombay High Court acquits GN Saibaba in an alleged Maoist links case.

October 14, afternoon: Appeal filed by State of Maharashtra before the Supreme Court against the acquittal by Bombay High Court.

October 14 before 4 pm: State of Maharashtra mentioned the appeal before Justice DY Chandrachud's Bench. Seeks urgent listing.

Justice Chandrachud orally remarked that he cannot pass directions to list the matter on a Saturday. He also remarks that since the judgment is one of acquittal, even if it is listed on Monday, the chances of the Court staying the judgment would be less.

The Bench also comprising Justice Hima Kohli, nevertheless, recorded the following in its order of Friday.

"The Solicitor General states that he will move an application before the Registry for obtaining administrative directions of Hon’ble the Chief Justice for listing of the Special Leave Petition tomorrow (15.10.2022)."

October 14, a little before 4:30 pm: As per CJI Lalit, registry officials came to him and said, 'Sir there has been an order passed which contemplates forming a bench on Saturday'.

He said, 'Very well I will be meeting all the judges now at the farewell'.

October 14 at the farewell between 4:30 pm and 5 pm: CJI Lalit first asked Justice Chandrachud whether he would be willing to be part of the bench on Saturday.

Justice Chandrachud declined since he had other commitments. As per CJI Lalit, Justice Chandrachud also did not mention that he had orally remarked against listing the case on Saturday.

He asks many other judges, who also declined. Eventually, Justices MR Shah and Bela Trivedi agree, and the Bench is formed.

October 15, 11 am: The Bench of Justices Shah and Trivedi hears the appeal filed by State government and suspends the acquittal of Saibaba.

Two controversies

Right from the time the Bench was constituted, there was a lot of criticism directed against then CJI Lalit. The criticism was two-fold.

First, the hurried manner in which the Bench was constituted and listed for Saturday.

The criticism regarding this was based on the fact that usually the Supreme Court lists a matter out of turn, only when the matter is likely to become infructuous (moot) if the matter is not heard urgently or if it involves the question of life and liberty of an individual.

In the instant case, there was no question of the matter becoming infructuous since Saibaba even if released can be brought back to prison if the Supreme Court later on stays or suspends the order.

The other is issue of life and liberty. This is usually invoked by courts when an individual's liberty is sought to be deprived by the State and not vice versa unless his release even for a day would have drastic and dangerous consequences.

The second criticism raised against the CJI was the composition of the Bench.

This article will not address the second controversy, since the composition of a special bench is the prerogative of the CJI and his subjective wisdom has to be accepted as long as he continues to be the master of the roster.

However, the first issue regarding listing the matter on a Saturday does deserve a closer look.

As per CJI Lalit's version, he was not told by either the registry officials or Justice Chandrachud about the remarks made by the latter against listing the matter on Saturday. The fact remains that neither the registry nor Justice Chandrachud were obligated to disclose the same.

Registry officials do not inform a CJI or judge about oral remarks that are made by another bench; they go by the order of the concerned bench.

The order in the present case was clear as daylight. It merely recorded the submission of the Solicitor General that he will move the CJI for urgent listing on Saturday.

Hence, the order by Justice Chandrachud left it to the discretion of the CJI to list the case, as regards the date as well as the bench composition.

In fact, Justice Chandrachud, by refraining from passing any directions, was only deferring to the master of roster principle cemented by a Constitution Bench of the top court itself.

The decision to list the case on a Saturday was, therefore, taken by the CJI.

Whether registry officials told him that the matter has to be listed on a Saturday or whether they merely apprised the CJI of the order passed by Justice Chandrachud's bench, is open to speculation.

Either way, it was upon the CJI to check the order and take a decision on when the matter has to be listed.

The explanation given by the former CJI as to why he listed the case on a Saturday stands on shaky ground. Merely because the order records a submission of the counsel that he wants an urgent hearing does not mean that the bench concerned has allowed that plea for urgent hearing.

It is up to the CJI to decide based on facts and circumstances as to whether the case warranted urgent hearing.

The CJI, however, seems to place reliance on registry communications and order of Justice Chandrachud at different points in the interview to explain the listing, but fails to mention that it was his discretion that eventually led to the urgent hearing.

Whether the CJI was justified in exercising his discretion to convene a Saturday hearing can be a debate for another day.

Disclaimer: The views are of the author and do not necessarily reflect the views of Bar & Bench.