A tenure that withered on the vine


Justice SA Bobde is perhaps the only Chief Justice of India in the country’s judicial history who gave a clean chit to his predecessor as well as his successor. Leading an in-house inquiry as the second senior-most judge in the court, cleared former CJI Ranjan Gogoi in a case of sexual harassment; then, as CJI, he cleared the decks for justice NV Ramana by shutting a complaint of alleged impropriety against the latter from Andhra Pradesh CM YS Jagan Mohan Reddy. Both the inquiries were conducted with utmost secrecy by an institution that otherwise preaches transparency and decries conflict of interest.

However, there are more than one reason why justice Bobde’s tenure reflects peculiarity. His 17-month tenure, most part of which was spent conducting proceedings through video-conferencing, was marked by justice Bobde’s idiosyncrasies instead of an institutional response. This was a man who made the headlines, repeatedly, for his utterances; the following day was usually spent clarifying what had been said or contradicting the older statements. In March, he asked a government employee seeking protection from arrest in a rape case if he was willing to marry the survivor? A week later, justice Bobde blamed the incident on “misreporting” and said he had highest respect for women. Similarly, in a hearing earlier this month, justice Bobde commented on how some women lawyers had turned down offers to become judges because of familial responsibilities and education of their children. Two days later, the CJI was yet again clarifying that he did not mean all women lawyers had declined to become judges because of family issues.

Two days before his retirement, justice Bobde’s bench took suo motu cognisance of the crisis triggered by the second Covid-19 wave, and decided to monitor the equitable distribution of medical supplies. The move was contentious because at least seven high courts were already supervising these issues in their jurisdiction, keeping the Centre and state governments on their toes. Justice Bobde, in his distinctive style, once again remarked that the Supreme Court would consider transferring all the cases from the high courts to itself – something that the Union government said was the proper course of action. Justice Bobde appointed senior advocate Harish Salve as the amicus curiae to assist the court even though Salve represented Vedanta, which wanted its controversial shuttered plant in Tamil Nadu’s Thoothukudi reopened for producing oxygen. A massive controversy erupted with several senior lawyers raising questions if this was an attempt to hold the hands of the proactive high courts. On his last working day, justice Bobde was seen not only issuing a clarification about there being no restraint against the high courts but also retiring without hearing this case any further. Salve withdrew as amicus in the wake of the disputations over his possible conflict of interest.

The issues that arose out of justice Bobde’s personal traits were sometimes compounded by a lack of judicial determinateness and decisiveness by the benches he headed, leaving very little as his legacy as a Supreme Court judge. He headed the benches which were seized of some of the most important cases of the times, including validity of statutes, such as the three farm laws, the Citizenship (Amendment) Act, and the constitutional amendment providing for quota for economically weaker section; the Sabarimala case which was expanded to include various other religions and their practices; the definition of a “money bill”; the validity of electoral bonds; the deportation of Rohingya refugees; and the handling of the migrants’ crisis during the lockdown last year. Not one of these cases attained finality. Interim orders passed in some of these matters simply meant more delays in long-pending cases, often without good reason.

Meanwhile, cases of constitutional importance were put on the back burner. An argument can be made that constitutional matters involve at least five judges, a battery of lawyers, and a lot of paperwork, making them infeasible once the top court shifted to virtual hearings. However, it is pertinent to underscore that CJI Bobde did set up a five-judge bench when he decided in April to issue guidelines for cheque-bounce cases in a suo motu matter. Another five-judge bench also heard on a day-to-day basis and reserved its verdict in the Maratha reservation case in March this year. Moreover, most of the benches in the apex court did not sit for full hours, till 4pm on several days during the pandemic. Experts have pointed out that matters of constitutional import, if not decided immediately when they are topical and impact citizenry of the country, run the risk of becoming an academic exercise in adjudication, and may well benefit the executive.

Justice Bobde’s inclination towards constitution of committees and commissions in various matters also appeared to be symptomatic of a reluctance to close matters. He formed panels in cases on farm laws, the Hyderabad and Vikas Dubey encounters, environment and wildlife-related matters such as monetary valuation of a tree, protection of rare species of birds and the undergrounding of high-tension wires, and the water dispute between Delhi and Haryana. Some panels have submitted their reports, and others are yet to express their views.

Interestingly, justice Bobde launched parallel proceedings in several cases that the jurisdictional high courts were already looking into, causing some amount of consternation in legal circles. At the moment, both the Supreme Court and the Allahabad high court are seized of challenges to Uttar Pradesh government’s anti-conversion law. Despite being informed that the high court was examining the validity of the law, justice Bobde neither left it to the high court to decide nor transferred all the cases to the apex court. Similarly, justice Bobde agreed to examine the new user privacy policy of WhatsApp while the Delhi high court was already hearing the same. In the Hathras case, even after the Allahabad high court took suo motu notice, justice Bobde admitted the matter, asked the UP government to clarify certain aspects, observing: “We want to widen the high court proceedings and make it more relevant.” However, in less than a month, he had a change of heart and his bench acknowledged that the matter was already being examined by the high court. It finally referred everything back to the high court.

The tenure of justice Bobde will also be remembered for another unlikely distinction. He is the first CJI in judicial history who has retired without making recommendation for a single appointment in the top court after the advent of the collegium system in 1990s. Even during an unprecedented standoff between the judiciary and the central government over the National Judicial Appointments Commission (NJAC) that aimed to redefine the appointment process, the then CJI, HL Dattu, made one appointment. But justice Bobde was unable to do this. When he retired last week, the top court had only one woman judge. The failure was indicative of a lack of cohesion and understanding between justice Bobde and other judges in the collegium.

The shortage of judges across the high courts also rose to a new high with around 40% positions being vacant during his tenure. But as the first judge of the country and guardian of judiciary, justice Bobde’s endeavours fell way short of nudging the high court chief justices into sending proposals for appointments, resulting in a situation where there are no names for consideration for at least 200 positions of high court judges.

Having not been able to do much on the administrative side, justice Bobde, however, did try to deal with the issue of pendency of cases and shortage of judges on the judicial side. His bench paved way for the high courts to appoint ad hoc judges to deal with old cases but with an array of stipulations and limitations. The order made the entire process cumbersome and conditional on several factors instead of letting each high court devise its own formula, based on its own needs. Similarly, his bench sought to fix a timeline for the government to clear the appointment of judges to the high courts, but did not prescribe any schedule for the high courts to send names , which is the first and the most important step in the entire process. He also delivered a judgment in the Tata Vs Cyrus Mistry case, ruling in favour of the former while rendering a contentious jurisprudence on the rights of minority shareholders.

Justice Bobde’s tenure came across opportunities to affirm the supremacy of judiciary by making the executive accountable and by deciding issues of seminal importance that mattered the most to the citizens at a particular point in time. Most remain unresolved, though, and CJI Ramana may have to start from scratch.

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