Reflections on CJI S A Bobde

Drawing on the jurisprudence of his tenure as Chief Justice of India, as well as on her professional interactions with him over the years, human rights activist and senior advocate INDIRA JAISING looks back at Justice S.A. Bobde's complicated legacy as the 47^th CJI and reflects on an unconventional judicial officer who promised so much but ended up delivering very little and disappointing many. 

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THE outgoing Chief Justice of India S.A. Bobde comes from a long lineage of lawyers; his son and daughter are a fifth-generation lawyer! Justice Bobde's ancestors served the British as lawyers, and then the ruling political parties in Maharashtra. His father was the Advocate General of Maharashtra, and his brother, the late Vinod Bobde, was a much-respected lawyer practicing in the Supreme Court of India before he arrived on the scene. His family, therefore, is indicative of how the legal profession has evolved in our country.

Justice Bobde is obviously a product of his times, and his evolution represents the politics of our nation as well.  His ancestry says a lot about the legal profession and the judiciary in India, since judges in the higher judiciary are often recruited from among legacy legal families. Currently, plans are underway to appoint a woman to be the Chief Justice of India in due course of time – perhaps in 2027. The CJI mentioned at a recent public hearing in court that the time was right for a woman to be the CJI.

Justice Nariman, addressing the Sunanda Bhandare Memorial Lecture, also declared that the time was right for such an appointment.

Clearly, gender justice in the matter of appointment of judges is the flavour of the season and is the low-hanging fruit that the judiciary is now claiming as its own agenda. Perhaps Justice Bobde saw this as something that could have been part of his legacy, but obviously, this was not to be, since there was not a single judge, let alone a female judge, appointed to the Supreme Court during his tenure.

Currently, there is speculation that Justice B.V. Nagarathna, currently at the Karnataka High Court, will be elevated to the Supreme Court and is the favourite to become the first female CJI. It is not my case that we do not need more female representation in the judiciary.

After all, the fact is that out of the currently serving 29 judges in the Supreme Court, only one is a woman, and of the 1079 currently serving judges across the High Courts in India, only 82 are women.  Among the 218 judges to have served on the Supreme Court in the past, only seven have been women.

Clearly, there exists deep-rooted discrimination against women in the higher judiciary. However, tokenistic appointments, that too of women from lineage, does little to break the glass ceiling for women.

Also read: Time to Bring in Gender Parity in India's Courts

Ancestry matters: Justice Nagarathna is the daughter of a former CJI and from an upper caste. If she does get appointed, she will be yet another in a long line of upper caste Chief Justices of India.

This is indicative of how there is no equality of opportunity in the matter of appointment of judges to the higher judiciary.

True equality of opportunity would come only when expression of interest is invited from all eligible persons for appointment to the Supreme Court and the High Courts as judges, who then get evaluated by an impartial panel of experts, whose proceedings are public.

Many jurists opposed the National Judicial Appointments Commission, and believe that the Supreme Court rightfully struck it down in a bold act of self-assertion. But in its place, we have reverted to the clandestine method of unilateral nominations by the Supreme Court Collegium and the vetoing of some nominees by the Union Government as a backdoor mechanism of controlling appointments.

Looking back at CJI Bobde's tenure

Much of what is to be said about his term at the helm of the Supreme Court has already been said. The failure of the Supreme Court to list matters of great public importance, including the challenge to the Citizenship Amendment Act and the amendment to Article 370 of the Constitution of India, the increased pendency of cases in the apex court under his tenure, his late attendance in the courtroom, his unusual orders in relation to the new farm laws – all this, and more, has been noted during his tenure.

The fact that he headed the Internal Investigation Committee which absolved his predecessor Justice Ranjan Gogoi of any wrongdoing in relation to a sexual harassment accusation by a Supreme Court staffer, and refused to share a copy of the committee's findings with the complainant or with the public, nor allowed her to be represented by a lawyer in the proceedings before it is also well known. It is a different matter that the story appears to have ended happily for both Justice Gogoi, who got nominated to the Rajya Sabha soon after his retirement, and the complainant, who had been removed from her service after filing the complaint but was ultimately reinstated in a hush-hush manner.

Also read: Sexual harassment allegations against CJI Gogoi: 350 women's rights activists reject Justice Bobde committee findings

One of his first acts after becoming CJI was to constitute a nine-judge Constitutional Bench to review the Sabarimala judgment. This reference faced resistance from many of his fellow judges, some of whom had been on the Bench that gave the judgment.

When the Bench was constituted, some senior counsel, including this writer, requested a recall of the order. Justice Bobde declined, stating in open court that the judgment required a review, not by a seven-judge bench but by a nine-judge bench, as other previous judgments by large benches may have to be overruled. This was a clear signal of his interest in the right to freedom of religion generally. Luck, however, did not favour a ruling on the subject: first, the illness of one member of the bench, and later, the COVID-19 pandemic made sure that the matter was never listed.

Also read: Sabarimala Review: The majority judgment sets a dangerous precedent; it undermines the rule of law

The most telling comment on his tenure came from the agitating farmers who virtually stayed away from the Constitutional Court – a resounding vote of no-confidence in the judiciary and in particular in his court. The open invitation by the court issued to farmers to join was rightly rejected by them, trusting instead in the power of peaceful protest.

Their vote of no-confidence appeared to be due to the membership of the panel of experts appointed to come back with an opinion on the three laws. Each of the experts appointed had earlier publicly expressed their support for the farm laws. In fact, one of these experts was the president of the Shetkari Sanghatana, a farmers' organisation founded by the late S.A. Joshi, who was reportedly very close to him. The principle of natural justice relating to the non-appearance of bias was clearly ignored in doing so.

Also read: After Supreme Court Order, Farmers' Unions have to be Prepared for a Long Haul

Candid or insensitive?

Justice SA Bobde was a remarkable judge in some aspects. For one, he spoke his mind without hypocritically guarding his language behind politically correct language. On his last day in Court, when confronted with a request for recusal made by Amicus Curiae Harish Salve on the ground of a potential conflict of interest, having attended both school and college with Justice Bobde, the latter said that "there is nothing clandestine about that." This was quintessential Justice Bobde, speaking  his mind freely and frankly.

But it is one thing to be candid and another thing to be completely wrong. Some of his remarks, whether those in relation to the plight of migrant workers or to women facing sexual abuse, flew in the face of Constitutional values and were completely unacceptable from a CJI, particularly, if made unthinkingly.

His recent comment that women are not willing to come forward and join the judiciary due to domestic responsibilities was the latest in his series of gaffes.

Anyone occupying the position of CJI must necessarily be committed to the human rights framework reflected in the Constitution, regardless of their personal opinions.

Minor successes  

Having said that, credit must also be given where it is due. The role of the outgoing CJI in successfully introducing virtual court hearings, thus keeping the doors of the courtroom open during the pandemic, must be acknowledged. The technological switch, made in a relatively brief period of time, is appreciable for enhancing access to justice. It was impossible for the Supreme Court to transfer its entire caseload to the medium of virtual hearings, but the Court, under Justice Bobde's leadership, did its best to keep hearings going for some matters that it deemed urgent.

Justice Bobde's appreciation of artificial intelligence (AI) is no secret, and he employed it for the translation of the apex court's judgments to various regional Indian languages. It is hoped that that is the extent of AI's use by the Supreme Court and that any attempt to extend its use would be preceded by a nationwide discussion on the matter. This is due to legitimate concerns, not over whether AI will replace human intelligence, but over the surveillance capability, it potentially permits.

Administrative Failures 

Mystery surrounds the question of why Justice Bobde took no steps to designate senior advocates during his tenure. Applications filed to invite expression of interest were not listed for hearing, making it clear that there was no possibility of new designations. The doors which we thought had been opened were closed, leading to several deserving lawyers waiting their turn.

Justice Bobde also consciously avoided framing rules for live streaming proceedings from the Supreme Court, giving the impression that he was opposed to bringing transparency into the court. This, in spite of the court agreeing to do so in a 2018 judgment. If judges of the court do not respect its decisions, who will?

Also read: Why Have Court Proceedings Not Been Live-streamed Despite Supreme Court Ruling?

Justice Bobde must also be the only CJI who, in spite of having enjoyed a tenure of 522 days as the chief judge of the Court, which is among the longer CJI reigns in the history of the apex court, made no appointment of judges to the Supreme Court. He leaves behind five vacancies for his successor to fill up. This can only be indicative of his inability to build consensus among his fellow collegium members and the Union government regarding the choice of judges to be promoted.

What is next for Justice Bobde?

At this stage, one can only speculate about Justice Bobde's future plans.

We now know that the options for retired judges, especially retired CJIs, are quite limitless – heading the National Human Rights Commission or one of the various tribunals of great commercial importance, presiding over regulatory bodies, assuming Governorship of states, aspiring to become Vice President of the country, membership to the Rajya Sabha – all of which pierce the thin veil over the relationship between the judiciary and the executive.

Or maybe he will return to Nagpur and relax.

Ultimately, time will tell, but whichever decision he takes, Justice Bobde is unlikely to be out of the news. My guess is that Nagpur will welcome him and have something lined up for him.

On a more personal note, I have professionally known his late father A.S. Bobde, and my work often saw me appearing with him or against him in court. This is how I was introduced to a young S.A. Bobde, who was then a practicing lawyer in Nagpur.

It is also little publicised that he represented the accused in a sedition case in Chandrapur at the Bombay High Court, along with his father, for bail. The accused in that case were known to us all, some of them being lawyers themselves.

It might also come as a surprise to some that one of the accused in the Bhima Koregaon case, Surendra Gadling, started his legal practice in Justice Bobde's chamber during the latter's litigation practice days.

Justice Bobde almost seemed one of us at that time. This is how open his father and he were to the forces of social change. He developed a reputation for being a civil libertarian, which gave rise to hopes that he would advance that jurisprudence as a judge. Alas, we saw no signs of it during his tenure as CJI.

Speaking for myself, I was the most disappointed in him as CJI when he refused to entertain an urgent hearing to prevent the attack on students from Jamia Milia Islamia in Delhi during the anti-Citizenship Amendment Act protests in 2019. Visuals of the Delhi Police entering the university campus and brutally beating down students in their library and washrooms were then fresh in our minds. To choose not to exercise the Supreme Court's jurisdiction under Article 32 of the Constitution at such a time seems like an abject abdication of not just legal but moral responsibility. The case was relegated to the Delhi High Court, where it lies till today, still undecided. Surely, students' grievances must get adequate attention from all of us, including the highest court of the land.

Contrast this with the way the judicial system works in the USA, where the former police officer Derek Chauvin has already been convicted for the murder of George Floyd, within eleven months of the gruesome incident. The murder has sparked off a massive national debate in the US on the use of excessive force by the police against black people; unfortunately, we see no such debate about police brutality in India in spite of several well-documented cases of the menace over the last so many years.

Also read: Five reasons why George Floyd got justice and Faizan may never do so

In the last two days of Justice Bobde's tenure, the Supreme Court initiated suo moto hearings in relation to the management of the COVID-19 pandemic, presumably under Article 32 jurisdiction. Such inconsistency in responding to public grievances has created confusion about when the Supreme Court opens its doors to the public, and when it does not. Ironically, and in keeping with the Supreme Court's recent track record, this urgent matter was adjourned till next Tuesday with no directions to the State for now.

Justice Bobde's humanity 

It is undeniable, though, that Justice Bobde is a very approachable human being and completely candid about his lifestyle. His enthusiasm for motorcycles and his affection for dogs were never disguised. We know too little about our judges outside the courtroom, and speaking for myself, I did appreciate this dimension of his personality.

He did, to some extent, reshape the stuffy corridors of the Supreme Court of India, and made them more comfortable. If the pandemic had not intervened, the legal community's interaction with him may have been more meaningful.

(Indira Jaising is a human rights activist, senior Supreme Court lawyer and the founder of The Leaflet. The views are personal.)