Know Thy Judge| Justice Uday Umesh Lalit

Justice Uday U. Lalit, born on 9th November, 1957, is the 6th Senior Advocate to be directly elevated to the Supreme Court. As a senior advocate he specialised in criminal cases and was appointed as CBI’s Special Public Prosecutor in all 2G matters, under the Supreme Court’s orders.

Journey to becoming Supreme Court Judge

Justice Uday U. Lalit  is the son of Retd. Justice UR. Lalit, a former additional judge of the Bombay High Court, Nagpur bench and a senior counsel practising at the Supreme Court. He joined the bar in 1983 and practiced as an advocate in the Bombay High Court from 1983 to 1985. In 1986, he joined the chambers of Former Attorney General for India, Soli Sorabjee from 1986 to 1992. In 2004, he was designated as a senior advocate and also served as a member of the Supreme Court’s Legal Services Committee for two terms.[1]

In 2011, the Supreme Court bench of Justices GS Singhvi and AK Ganguly appointed him as CBI’s Special Public Prosecutor in all 2G matters.[2] Finally, in the year 2014, he was appointed as a judge of the Supreme Court. A DNA India report[3], described that his “strength as an advocate were his thoroughness with the case, patience in explaining legal questions and the sober demeanour in presenting the case before the bench”.

Some Recent and Notable Judgments that Justice Uday U. Lalit has been a part of 

Smriti Madan Kansagra v. Perry Kansagra, 2020 SCC OnLine SC 887

The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ, explaining the concept of a mirror order, has said,

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

The said explanation came in a 2:1 verdict, where Indu Malhotra, J, writing the majority judgment for herself and UU Lalit, J, transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

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Imperia Structures v. Anil Patni, 2020 SCC OnLine SC 894

The bench of UU Lalit and Vineet Saran, JJ has held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

“It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available’, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.”

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Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867

Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

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 Sri Marthanda Varma (D) v. State of Kerala, 2020 SCC OnLine SC 569

The bench of UU Lalit and Indu Malhotra, JJ has upheld the rights of the Travancore royal family in the administration of Sree Padmanabhaswamy Temple, one of the world’s richest temples, in Kerala’s Thiruvananthapuram. Allowing the appeal filed by members of the Travancore family, the Court observed that the death of the Travancore ruler, who signed the covenant, does not affect the rights of the Shebaitship Travancore family over the temple and it will survive as per the customs.

After referring to a number of decisions, the Court concluded that when the idol is installed and the temple is constructed or an endowment is founded, the shebaitship is vested in the founder and unless the founder himself has disposed of the shebaitship in a particular manner or there is some usage or custom or circumstances showing a different mode of devolution, the shebaitship like any other species of heritable property follows the line of inheritance from the founder; and it is not open to the Court to lay down a new rule of succession or alter the rule of succession.

“… the shebaitship has the elements of office and property, of duties and personal interest blended together and they invest the office of the shebait with the character of proprietary right.”

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Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583.

The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question can a policy framed under Article 161 for grant of remission override the requirements under Section 433-A CrPC to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

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Justice (Retd.) Markandey Katju v. The Lok Sabha, (2017) 2 SCC 384

Dismissing the petition filed by former Supreme Court judge Markandey Katju against the resolutions passed by Rajya Sabha and Lok Sabha condemning the statements made by him in Facebook posts where he termed Mahatma Gandhi a British Agent and Netaji Subhash Chandra Bose an agent of Japanese fascism, the 3-judge bench of T.S. Thakur, CJ and R. Banumathi and U.U. Lalit, JJ held that for the free functioning of Houses of Parliament or Legislatures of State, the representatives of people must be free to discuss and debate any issues or questions concerning general public interest.

“Members need to be free of all constraints in the matter of what they say in Parliament if they are to effectively represent their constituencies in its deliberations. Sub-article (2) of Article 105 puts negatively what sub- article (1) states affirmatively. Both sub-articles must be read together to determine their content. By reason of the first part of sub-article (2) no Member is answerable in a court of law or any similar tribunal for what he has said in Parliament. This again is recognition of the fact that a Member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension of speech or a substitute for speech and is given the protection that the spoken word has.”

The Court noted that both Houses were conscious of the fact that the remarks about Mahatma Gandhi were made not by an ordinary person but by one who had occupied high public office. Hence, if both Houses thought it fit to pass resolutions in the form of a declaration, it was certainly within their competence to do so as the nature of remarks regarding Mahatma Gandhi and Netaji Subhash Chandra Bose pertain to general public interest. It was further noticed that the resolutions had no civil consequences in so far as the conduct and character of the petitioner is concerned.

“The first question raised by the petitioner is a time tested question regarding the scope of fundamental right guaranteed under Article 19(1)(a) of the Constitution to hold and express a dissenting opinion. The scope of this article has received judicial consideration on numerous occasions and the issue whether such freedom would include right to express a dissenting opinion is also a non issue; as it is only the maker of an unpopular and dissenting opinion who would need a cover or insulation. A popular or accepted opinion, naturally would not require any protection. In any event, Article 19(1)(a) guarantees free speech and expression and makes no distinction and imposes no caveats, whether such speech is popular or dissenting in nature. What is interesting is that the petitioner, in fact, exercised such freedom of speech and exercised it rather adequately. His comments and views on two famous personalities were available for consumption in public domain. His freedom of speech in publically expressing his views or propagating his ideas was not and is not in any manner curtailed or impaired or placed under any restriction”.

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 Union of India v. V. Sriharan, (2016) 7 SCC 1

In Union of India v. V. Sriharan, (2016) 7 SCC 1, the constitution bench comprising of H.L. Dattu, CJ and FM Ibrahim Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre and Uday U Lalit, JJ held that life imprisonment in terms of Secs 53 and 45 of the Penal Code, 1860 means imprisonment for the rest of life of convict.  The Court held that a special category sentence, in substitution of death sentence, that is, sentence barring remission under CrPC for specified term beyond 14 years, is valid. It is clarified that power under Arts. 72 and 161 is not affected at all. After expiry of said non-remittable term, remission powers under CrPC would be exercisable. Such special sentence, is not a new sentence but within limits of life imprisonment and thus, not violative of separation of powers. Such special sentence when imposed under substantive provisions of IPC does not overlap procedural power under CrPC either. Considering the crime situation in India (particularly nexus between hardened criminals and ill-gotten wealth, and nature of heinous crimes on the rise), delay in disposal of cases, and balancing interests of victims with those of convicts, such a special category of sentence is necessary. Arguments based on ray of hope for the convict were held not tenable. Such hope is rather required for victims, the Court observed. Such special category sentences can only be imposed by the High Court or Supreme Court and not by a trial court. Such special category sentence not prescribed by any statute, barring operation of remission powers under CrPC, is invalid. Such a special category sentence closes doors for reformation and encroaches upon power of legislature by prescribing a new sentence.

Some of the important observations by Justice UU Lalit in this case were

    • While construing the term ‘consultation’ it must be seen who is the best equipped and likely to be more correct in his view for achieving the purpose and performing the tasks satisfactorily and greater weight to his opinion may then be attached.
    • The convict undergoing the life imprisonment can always apply to the concerned authority for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 Cr.P.C. and the authority would be obliged to consider the same reasonably. The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the concerned authorities, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner.
    • By exercise of power of remission, the appropriate Government is enabled to wipe out that part of the sentence which has not been served out and over- ride a judicially pronounced sentence. The decision to grant remission must, therefore, be well informed, reasonable and fair to all concerned.

Miss ‘A’ v. State of Uttar Pradesh, 2020 SCC OnLine SC 817

The 3-judge bench of UU Lalit, Vineet Saran and S. Ravindra Bhat, JJ has held that no person is entitled to a copy of statement recorded under Section 164 of the Criminal Procedure Code, 1973 till the appropriate orders are passed by the court after the charge-sheet is filed.

“The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before.”

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Shayara Bano v. Union of India, (2017) 9 SCC 1

In the landmark Shayara Bano case, the Constitution bench comprises 5 judges namely Khehar, CJ,and  Kurian Joseph, RF Nariman, Uday U Lalit and S. Abdul Nazeer, JJ. Held the triple talaq to be violative of Article 14 and pronounced it to be unconstitutional. Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

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Vinodchandra Sakarlal Kapadia v. State of Gujarat, 2020 SCC OnLine SC 545

The 3-judge bench of UU Lalit, Indu Malhotra and AS Bopanna, JJ has held that an agriculturist cannot part with his agricultural land to a non-agriculturist though a ‘Will’ as per Sections 43 and 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (the Tenancy Act).

Section 43 lays down the restrictions on transfer of land sold or purchased under the Tenancy Act and Section 63 bars the transfer of agricultural lands to non-agriculturists.

The Court said,

“if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance but may also have serious impact on agricultural operations.”

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Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746

Holding that the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is not mandatory but directory, the bench of AK Goel and UU Lalit, JJ said that it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

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 Anokhilal v. State of Madhya Pradesh, 2019 SCC OnLine SC 1637

Noticing that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ has laid down the norms to ensure the same.

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Meters and Instruments Pvt Ltd v. Kanchan Mehta (2018) 1 SCC 560.

In the case where the question as to how proceedings for an offence under Section 138 of the Negotiable Instruments Act, 1881 can be regulated where the accused is willing to deposit the cheque amount, the bench of AK Goel and UU Lalit, JJ held that Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. The Court said:

“Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice.”

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*Associate Editor, EBC Publishing Pvt. Ltd. 

[1] Supreme Court Observer, Judges’ archive 

[2]2G scam: SC orders Lalit be made prosecutor by Sanjay K. Singh, The Economic Times, last updated on April 12, 2011

[3] Uday Lalit among four new judges to assume charge in Supreme Court, DNA India, Published on August 13, 2014

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