What Is Chief Justice Sharad Bobde’s Legacy, As He Retires?
The 47th Chief Justice of India, Sharad Arvind Bobde, is set to zoom off into retirement after an eighteen-month reign, marked by two waves of the coronavirus. His leadership of the institution, during a time of national crisis, has not lead to any enhancement of its stature. The court has withdrawn into enforced isolation, looked away from people’s misery, and has largely hunkered down waiting for the storm to blow over, and better days to return. Throughout the world, countries, and institutions with good leadership, have weathered the pandemic better than institutions and countries with weak or whimsical leaders. After the storms of the Gogoi era, the court had looked towards the more affable Justice Bobde, to steer the court into calmer waters. The question is, has CJI Bobde’s hand on the tiller, left the institution becalmed by dead winds.
His tenure began with a focus on religious issues that bedevil constitutional interpretation of the fundamental rights. In December 2019, he headed a bench that put a quietus to the Ayodhya verdict, by dismissing 18 review petitions filed against various aspects of the judgment. In February 2020, while dealing with the review petitions filed against the Sabarimala judgment, Justice Bobde held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The Court also framed seven questions that are related to Articles 25 and 26 of the Constitution which will now be heard by a Bench of nine judges. The bench was to be constituted shortly, but the pandemic put paid to those forays.
Dealing With The Pandemic
The advent of the nationwide lockdown towards the end of March saw the court adopting video conferencing for urgent matters. As time went by video conferencing became the norm and physical hearings were not resumed, except for the Maratha reservation case. The Supreme Court however chose to run hearings, on a little-known app called Vidyo, operated by external control rooms, over which participants including lawyers and judges, had no control. Thankfully the Supreme Court did not impose its choice on other courts and consequently, some of the High Courts chose to operate more well-known apps with a much smoother user interface. The Supreme Court however has doubled down on its choice of Vidyo despite continual criticism from users, including some judges. To persist in error, in the face of contrary evidence, is to indulge in institutional confirmation bias, in the technology sphere.
Chief Justice Bobde was repeatedly heard advocating artificial intelligence solutions in a judicial system that cried out for a little native intellect.
To his credit, Bobde headed a bench that directed the states and union territories to constitute high powered committees that could decide which prisoners may be released on interim bail or parole during the pandemic. The Court recommended considering prisoners for release who have been convicted or are undertrial for offences for which the prescribed punishment is up to 7 years or less. Thousands of prisoners were temporarily set free, to avoid an explosion of Covid-19 in prisons. On the Civil side, the court while exercising its powers under Article 142, passed an order extending the limitation period in all proceedings, whether condonable or not, with effect from March 15, 2020, until further orders. It also allowed summons and notice to be served through email, fax, and instant messaging applications in view of the Covid-19 pandemic.
Unions Versus The Union
When farmers’ protests and the resultant blockades of roads, came up for the Court’s consideration, Bobde refused to interfere with the protest, holding that the “right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.” The Court declared that the farmers’ protest should be allowed to continue without any breach of peace either by the protesters or the police.
Later the Supreme Court granted a stay on the “implementation of all the three farm laws for the present”, with a view to “assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith”. Rejecting the Attorney General’s argument concerning the presumption of constitutionality, the Court declared that it was not “completely powerless to grant stay of any executive action under a statutory enactment”. It also formed a committee to resolve the disagreements between the farmers and the government. The Court concluded by saying that it hoped that this “extraordinary order of stay… will encourage the farmers bodies to convince their members to get back to their livelihood”. However, these orders failed to convince the farmer unions, who even today are continuing with their protest.
A Costly Reversal
It is however Bobde’s turnaround on the question of not allowing crowds to gather for religious festivities, which may yet mark the Supreme Courts’ tacit encouragement of super-spreader exemptions. In June 2020, the country had barely emerged from a brutal nationwide lockdown, when the question of holding the rath yatra of Jagannath at Puri, was brought before the court. “Lord Jagannath Will Not Forgive Us If We Allow This” proclaimed CJI Bobde on June 18, while staying the gathering of crowds for the religious function. Barely had the ink dried on the order, that politicians of all hues began to remonstrate. Four days later, on June 22, 2020, Justice Bobde revised his order and allowed the yatra to proceed subject to some conditions. The court set its imprimatur upon religious exceptions to pandemic restrictions, which doctrine has thereafter plagued, all efforts to strictly enforce masking and social distancing in crowd situations.
The crowds at Holi and the Kumbh Mela, which fuelled the second wave, owe their origin to Lord Jagannath’s power of judicial review.
CJI Bobde’s final week in office, was marked by staying an order of the Allahabad High Court which excoriated the state government for its weak Covid response. The High Courts of Bombay, Uttarakhand, Telangana, and Delhi too are examining similar questions. Those state governments may now feel emboldened to resist High Courts that seem determined to hold their Covid response to strict constitutional scrutiny. After all, there is a precedential value attached even to interim orders of the Supreme Court. On April 22, the Chief Justice said there was confusion and diversion due to six separate High Courts exercising their jurisdiction, took suo moto cognizance on four issues (supply of oxygen, essential drugs, vaccination, and power to lockdown), and appointed Harish Salve as amicus in the matter.
As the deadly second wave of the pandemic rages and the virus goes into exponential growth, killing thousands of Indians, we must squarely ask, has the Supreme Court been complicit in the destruction of human life? Has Lord Jagannath not forgiven us?
An Empty Slate On Appointments
In the matter of judicial appointments, Chief Justice Bobde failed to leave any mark whatsoever on the Supreme Court. An eighteen-month tenure would normally produce four or five appointments, if not more. While the collegium did meet to consider recommendations for appointments to the Supreme Court, it failed to recommend any names during his tenure. Appointments to the High Courts were recommended and processed, but not in substantial numbers to cover the attrition due to retirements and resignations.
The seeds of the logjam on Supreme Court appointments were possibly sown in Chief Justice Gogoi’s tenure when the appointment of Justice Akil Qureshi as Chief Justice of Madhya Pradesh was substituted by an appointment to the High Court of Tripura. The case of Justice Qureshi who is now due for consideration for elevation to the Supreme Court, but is likely to not find favour for appointment by the government, is a challenge that the collegium has not squarely addressed so far. Some senior judges seem inclined to make the recommendation and some others may prefer a cautious approach. The ball is now in the court of Chief Justice designate Ramana and the new collegium.
There has also been considerable talk about a woman judge being elevated in time to be Chief Justice of India, but that too is still a question at large. It is however apparent, that Bobde has, in his tenure, failed to achieve consensus on recommendations for appointment to the Supreme Court.
A lack of a record on appointments is a serious gap while evaluating the legacy of any Chief Justice of India.
In The Face Of Adversity
A summation of Bobde’s triumphs and disasters, brings to mind, the image of Pontius Pilate, the procurator of Judea, who presided over the trial of Jesus Christ. The New International Version of the Bible records the exchange:
Jesus answered with abandonment, “You say that I am a king. Instead, in fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”
What is truth?” retorted Pilate. With this, he went out again to the Jews gathered there and said, “I find no basis for a charge against him. But it is your custom for me to release to you one prisoner at the time of the Passover. Do you want me to release ‘the king of the Jews’?” They shouted back, “No, not him! Give us Barabbas!”
The gospel of John goes on to record, “…From then on, Pilate tried to set Jesus free, but the Jewish leaders kept shouting, “If you let this man go, you are no friend of Caesar. Anyone who claims to be a king opposes Caesar.”
When Pilate heard this, he brought Jesus out and sat down on the judge’s seat at a place known as the Stone Pavement. It was the day of Preparation of the Passover; it was about noon. “Here is your king,” Pilate said to the Jews. But they shouted, “Take him away! Take him away! Crucify him!” “Shall I crucify your king?” Pilate asked. “We have no king but Caesar,” the chief priests answered.
Finally, Pilate handed him over to them to be crucified.
Like Pontius Pilate, Chief Justice Sharad Bobde often had the right instinct, but not the persistence to follow it.
He was good when the going was good but was not a leader designed for adversity.
In the face of persistent clamour, he yielded his individual voice and added it to the multitude. As he demits office, one can only hope that he retires to a fruitful private life and chamber practice as a gifted man of law. A return to public office or employment may only further fray what remains of his legacy.
Sanjay Hegde is a Senior Advocate at the Supreme Court of India.
The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.