CJI Bobde Led Further Decline Of Supreme Court As A Constitutional Court

As the Chief Justice of India, Sharad Arvind Bobde had to preside over the Supreme Court when the country was going through a turbulent and difficult phase. There was(and still is) the unprecedented humanitarian crisis caused by the COVID-19 pandemic and the nationwide lockdown. It was also the time when widespread protests were simmering across the country against the ruling regime over the changes made to laws related to citizenship and farming. Corresponding to the rise of civilian protests, the regime's use of draconian laws relating to anti-terror and sedition against dissenters and activists increased. It was a time when the executive grew in its might, and its powers became even more unfettered, when the coronavirus threw normal life out of gear.

It was a period when the judiciary was faced with novel constitutional problems and human rights issues. If you were one among those who had placed hopes on the Supreme Court to deal with these issues with all its powers as a constitutional body to protect the rights of citizens, then you would feel let down by many of the responses of CJI Bobde, which were evasive, shallow and callous at times.

CAA- the first challenge

Soon after assuming office in the last week of November 2019, CJI Bobde was faced with the challenge posed by the Citizenship Amendment Act. The Citizenship Amendment Act and the announcements about the National Register of Citizens triggered off mass civilian protest movements across the country, which were sought to be brutally suppressed by the State through the invocation of Section 144 orders, police crackdowns, internet shutdowns etc. The changes to the core concepts of Indian citizenship and the uncertainties about the National Register of Citizens and the anxieties about its apparent precursor the National Population Register sent the country into a state of turmoil. Over 140 writ petitions were filed in the Supreme Court by different parties across the nation challenging the CAA-NPR-NRC.

Meanwhile, few petitions came before the CJI complaining of police brutalities in the campuses of Jamia and AMU. The CJI first said that the petitions will be heard "only after violence stops", and later turned the petitioners away to alternate remedies.

While many were looking up to the Supreme Court for an expeditious and authoritative pronouncement on the issues relating to citizenship, CJI Bobde chose to give priority to certain academic questions of religious rights raised in a curious order passed in Sabarimala review.

When urgent listing of the CAA petitions was sought, the CJI said 'after Sabarimala reference'.

It was a moment characteristic of the present times, where abstract questions of religion often prevail over concrete rights of citizens.

Both the issues – CAA and Sabarimala- remain unresolved today.

Pandemic-Lockdown-Migrants Crisis

When a country wide lockdown was announced in the March 2020 to control the COVID19 pandemic, it led to the unfolding of another humanitarian crisis, which the authorities failed to foresee – the exodus of migrants from cities. In the absence of regular means of transport, they attempted to traverse hundreds of kilometers by foot.

Heart-rending images of hordes of migrants families walking along roads, some with kids and toddlers, flooded the media. The situation was alarming enough to warrant a suo-moto intervention by the Court, especially considering the fact that usual judicial remedies were beyond the access of the hapless victims.

The grave humanitarian crisis in the unfolding demanded a prompt and pro-active response from the Court. However, when a PIL espousing the cause of migrants came before a bench headed by the CJI, it made a demeaning finding that the massive exodus of migrants was caused by "fake news".

"The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months.", observed the CJI-bench in an order passed on March 31(It is a different matter that the lockdown continued for over three months after that).

The CJI's bench also recorded, without any verification, the submission of the Solicitor General that no migrant workers were walking on the road(to record this submission in the order which was speaking of exodus of migrants was in itself contradictory!).

This conclusive and sweeping finding was solely based on the assertion made by the Centre in its affidavit that fake news was to be blamed for the exodus. The CJI did not think it fit to probe if there were other factors - such as unemployment, penury, lack of food and shelter - which drove the migrants to desperation. This finding, made without any evidence and discussion, had two problematic effects :

1. Absolving the executive of its liability by indirectly stating that the migrants brought their own predicament upon themselves .
2. Trivializing the genuine sufferings of migrants by characterizing them as a response to a so-called fake news.

After expressing concerns about fake news, the Court stressed on "importance of mental health and the need to calm down those who are in a state of panic". The Court said that trained counselors and community leaders of all faiths should be arranged in all shelter camps and urged the authorities to treat the workers with "kindness". The Court failed to understand that the "anxiety and fear" of the migrants were not just matters of perception which could be cured through counselling and spirituality, but were real sufferings caused by lack of basic human necessities.

The Court's lack of sensitivity came on display again on April 7. While hearing a PIL filed seeking to direct the Centre to transfer wages to the accounts of migrants in shelter homes, CJI Bobde asked "if they are being provided meals, then why do they need money for meals?".

The Court's response to the migrants crisis came under severe criticism from many legal luminaries. Ultimately, after mounting public criticism, the Supreme Court took suo moto cognizance of the case in the last week of May last 2020, nearly two months after the lockdown declaration.

Farmers Protests

The CJI's response to the farmers protests against the controversial laws on farming was dumbfounding. A bench led by him stayed the implementation of the laws, but not on any legal or constitutional ground. The stay was ordered to facilitate talks between the protesters and the Central Government through a committee formed by the Court. (This extra-legal course adopted with respect to farmers protests, was in stark contrast with the total neglect shown by the court to the issues raised in CAA-protests, which were comparable to the scale of farmers protests. It may also be recalled that during the CAA-protests, the CJI had taken suomoto cognizance of a letter petition against participation of children in protests, though nothing came out of the matter).

When the CJI announced the names of the Committee members, it left everyone astonished, as all of them had favoured the farm laws in varying degrees. With this exercise, CJI Bobde took the Court into the political thicket, ignoring the primary judicial function of examining the vires of a law. As expected, embarrassment was in store for the Courts. The protesters boycotted the committee expressing no-confidence in it. One of the committee members recused.

Red-faced at the public flak against the court order, the CJI launched a verbal attack on the press and the critics while hearing the case on a later date.

"How can you play with people's reputation like this? We have serious objections in they being called biased and in saying court was having an interest. You malign people according to majority opinion?"

"We are very sorry to see the kind of opinions expressed in newspapers", he said.

Few weeks ago the committee submitted a report in sealed cover in the court. The farmers are still protesting. Questions of constitutional law in the pleas challenging farmers law are pending consideration.

Impulsive remarks, lack of legal reasoning

With his tendency to make off-hand, impulsive oral remarks from the bench, CJI Bobde has landed himself in controversy on many occasions.

His remarks such as 'why do migrant workers need money when they get food'(during lockdown), "We don't understand either why old people and women are kept in the protests"(during the famers protests case hearing) came under severe public criticism for their apparent insensitivity.

CJI Bobde was also seen insisting on the use of colonial honorifics 'your lordship' or 'my lord' on two occasions. He refused to hear two petitioners for not using these terms to address the court.  This was a surprising response, out-of-sync with the latest practice adopted by many judges to discourage the use of these archaic forms of address.

A month short of retirement, CJI Bobde kicked up another row with his 'will you marry her?' question to a man accused of raping a minor on a false promise of marriage. The man, who was accused of inducing a minor girl into sexual intercourse by promising to marry her while he was a teenager, had approached the Court seeking anticipatory bail . Upset with the huge backlash generated by the remarks, CJI Bobde, on a later date, claimed that his observations were misreported and said "we never gave a suggestion that you should marry. We had asked, are you going to marry!"

Orders lacking adequate legal reasoning

The bigger issue is that many orders passed by CJI Bobde also reflected the loose nature of his oral remarks. The striking example is the recent order passed to refuse stay on electoral bonds, which was astonishingly lacking in legal reasoning. The bench even made puerile remarks in the order that the anonymity of the bonds can be pierced by doing a "match the following" from the public records of political parties and companies. It was shocking that the bench did not take note of the basic fact that political parties are exempted from disclosing the donations received via electoral bonds. Clearly, the bench had not understood the impact of the amendments brought by Finance Act 2017. In another detailed article, this author has argued how the electoral bonds order is erroneous.

The order allowing the deportation of Rohingya refugees was an even more shocking example. The bench led by CJI Bobde did not address the arguments raised by the petitioner based on the principle of 'non-refoulement'. The Court said that right not to be deported was a facet of right to reside in India, a fundamental right under Article 19 which is available only for Indian citizens. The bench failed to note that the Rohingyas were apprehending threat to right to life under Article 21 – which is available to non-citizens as well – as their deportation to Myanmar will expose them to genocide. As legal scholar Gautam Bhatia pointed out, with this order, the Supreme Court travelled back in time to the AK Gopalan era where Article 14, 19 and 21 were seen as forming distinct silos.

Even during this case hearing, CJI Bobde made certain insensitive remarks such as "Possibly that is the fear that if they go back to Myanmar they will be slaughtered. But we cannot control all that".

Inconsistent approach on Article 32

CJI Bobde has said on many occasions that the Court was trying to cut down the jurisdiction under Article 32 of the Constitution.

These statements had raised many eyebrows, as Article 32 is said to be the heart and the soul of the Indian Constitution, in the words of Dr BR Ambedkar.

Perhaps,he might have meant the weeding out of frivolous petitions filed in SC misusing Article 32. But even such an intention was not consistently reflected in the responses of CJI Bobde to many other petitions. For example, the bench led by him has issued notice on a petition filed under Article 32 seeking a ban on the streaming of 'Mirzapur 2' series on the ground that it was tarnishing the image of Uttar Pradesh!

His bench also issued notice on petitions challenging the Places of Worship Act 1991, which was enacted to stop the repeat of Ayodhya-like disputes in other parts of the country. Since the constitutionality of this Act was upheld by the 5-judge bench in the Ayodhya verdict (of which CJI Bobde was a part of), the 3-judge bench led by CJI ought to have given at least a prima facie reason which warranted the issuance of notice, especially so as the matter was communally sensitive.

Not many judgments by CJI Bobde

Although CJI Bobde had a fairly long term of nearly one year and five months, during which a lot of constitutional issues arose, he has not delivered many judgments.

Tata Sons-Cyrus Mistry dispute is the major case resolved by him during his tenure as CJI. Major constitutional issues like Aadhaar-Money Bill, amendments to Article 370, EWS reservation are pending adjudication.

He also steps down with the rare distinction of not having made any judicial appointments to the Supreme Court.

He also followed the long-standing Supreme Court tradition of not displaying transparency in matters related to judicial administration. The complaint raised by Andhra Chief Minister Jagan Mohan Reddy against the CJI-designate Justice NV Ramana was dismissed after a "confidential" in-house enquiry, for reasons not disclosed to the public. Incidentally, Justice Bobde had led the in-house panel which rejected the sexual harassment allegations against his predecessor CJI Ranjan Gogoi, again after a secret enquiry.

CJI Bobde also did not take any action on the report submitted by ex-SC judge Justice AK Patnaik, who was asked to probe if the sexual harassment allegations against former CJI Ranjan Gogoi was part of a larger conspiracy against the judiciary. Another bench of the Supreme Court recently closed the case, observing that it will be difficulty to fetch electronic evidence after two years. It is also pertinent to note that CJI Bobde had reinstated the woman staffer who had raised the complaint against Gogoi, although a panel led by him had earlier dismissed her complaint as baseless.

His tenure also witnessed a trend of Supreme Court taking cognizance of criminal contempt cases against comedians, satirists etc., for their tweets/cartoons/comments about the Supreme Court. These contempt petitions were filed relying on the judgment against Advocate Prashant Bhushan, which held him guilty of contempt of court over his tweets about CJI-Bobde's picture on a Harley Davidson bike and about the Supreme Court's performance in general.

Unceremonious last day

The last working day of CJI Bobde ended on an unceremonious note, with the controversy over the suo moto cognizance taken by his bench on the previous day on COVID related issues. On the penultimate day of his term, CJI Bobde's bench took suo moto cognizance of COVID-19 related issues, while different High Courts in the country were already dealing with them at local level. The bench also appointed Senior Advocate Harish Salve as an amicus curiae in the case. The bench said that it wanted to pass a uniform order in these matters, and issued notice to parties before the High Courts, Centre and State Governments. This move of the Supreme Court came under widespread criticism, as it was apprehended that the top court was attempting to take over the cases from High Courts.

When the matter was taken by CJI Bobde on the last working day, Senior Advocate Harish Salve requested to be relieved as an amicus from the case, saying ""I don't want the case to be heard under a shadow that I was appointed because of my school friendship with the CJI".

The bench expressed strong displeasure at the criticism made by senior lawyers and clarified that it had no intention to stop the High Courts. Ultimately, the bench adjourned the matter to next week, by passing only the order to relieve Salve as amicus.

To his credit, CJI Bobde ensured that the Supreme Court worked without interruptions during the pandemic period, by quickly adopting e-filing and VC hearings. The suo moto orders passed by his bench to extend the limitation period and also to de-congest prisons during the pandemic were timely.

Shorty before retirement, CJI Bobde passed a series of notable orders aimed at judicial reforms – on expeditious trial of Section 138 NI Act cases, appointment of ad-hoc judges in High Courts, time-line for judicial appointments and criminal trial reforms.

However, as a constitutional court which is supposed to guard the fundamental rights of the citizens by holding the executive to account, the Supreme Court failed on many counts during the tenure of CJI Bobde.

In fact, this is not a new trend. We have been witnessing what many legal commentators called the 'rise of the executive court' over the past few years, where the Court shows an increased unwillingness to test the executive actions on the anvil of the Constitution(For more read here, here and here).

CJI Bobde perpetuated the status quo of judicial passivity, failed to assert judicial independence, and gave legitimacy to various executive transgressions through judicial abdications, leading to the further decline of Supreme Court as a Constitutional Court.

(Manu Sebastian is the Managing Editor of LiveLaw. He may be reached at manu@livelaw.in. He tweets @manuvichar)