A day after he was appointed the next Chief Justice of India, Justice Sharad Arvind Bobde, the most senior judge in the Supreme Court after CJI Ranjan Gogoi who retires on November 17, spoke to The Indian Express on his priorities, ideas and the road ahead.
What is your Idea of Justice?
The common notion is that justice must be in accordance with law. But there is an element in justice called equity. Equity is different. Equity is something you consider where does truth lie, what is the hardship that will be caused to litigants, what is the larger goal that will be achieved. So for instance, the law is that if by setting aside the impugned order, you will restore an order which is illegal, then you don’t set it aside. Balance. So people normally mix up equity and justice.
There have been many different phases in the life of the Supreme Court since 1950… the dark phase of the Emergency, then the activism-phase of the 1990s. How do you see the role of Supreme Court in a democracy?
The most important role is upholding the rule of law. And this is something which I even heard as the most important thing at a conference in Istanbul where many nations, which did not have a system like ours, but suffered a lot because of political upheaval. They said the most important thing a Constitutional court should do is uphold the rule of law. I think this is a universally recognised goal.
In 2019, what is the role of the Supreme Court in India?
Well, it can’t be different from what I said about the rule of law. So the Court has to uphold the rule of law. Stop short of making rapid changes in areas where it does not have adequate knowledge, where it cannot foresee the consequences. Justice (M N) Venkatachaliah told me something very interesting in a conversation. He said the slope of a drain should not be made steep suddenly because then the water will flow away and leave the rubbish behind.
Other than clearing pendency, what will be your topmost priority when you assume office on November 18?
It might sound very blasé or very pedantic, but I think the only raison d’être for the judicial system is justice. All other steps are intended to achieve that. And priorities change. But I do want to use technology judiciously, to make life in the court rooms easier for all concerned.
Liberty, Equality and Fraternity: which is the one India needs more of today?
There is a lot of mix-up in terminology. For example, liberty is mixed up with licence/license. Equality is mixed up with pulling down people, fraternity is used in the sectarian sense, but as a nation I think all three are indispensable, they support each other and one cannot thrive without the other two. So, you cannot choose one of the three.
Supreme Court has expanded freedoms in the past few years. Your thoughts on the road ahead? Can we expect deepening of these freedoms, freedom of speech, economic issues, social justice?
Freedom of speech became a very important issue and does become a very important issue when there are too many regulations on activity. But liberating an individual from a certain rule can have an overall impact of loss of peace in the whole society, thus loss of freedom of the people at large. According to me, it is always that the freedom some people claim, that they can say anything about anybody, and justify it as their opinion without any basis and maliciously, I don’t think that can be justified because the law has always been this. Freedom of speech is subject to the law of defamation, the law of contempt of court and there is nothing more beautifully expressed than the saying that your right to swing your arm ends where my nose begins. I think that is the thing.
Do you miss being an advocate? Are you jealous of lawyers when you see them now? Do you miss your past life?
(Laughs) No, no. I made this conscious decision to be a judge because I am a fourth generation lawyer and I have only seen lawyers in my life. I was the only black sheep who moved towards the judiciary in that sense, and I took a conscious decision as I found being at the Bar repetitive in its rewards. I felt I should answer the call.
On matters related to Kashmir, has the Supreme Court done enough?
I would rather not talk about it. Those matters are sub-judice.
You are hearing the Ayodhya title suit, as monumental a case and as intensely heard as perhaps the so-called ‘Basic Structure’ case was. How do you feel about being on that Bench?
I feel privileged to be hearing this. It has been an opportunity of a lifetime.
Do you feel encumbered by the way the government has been treating the decisions of the Collegium in some cases?
Actually, it may not be a very popular opinion, but I have not seen the government not processing something for the sake of it. They get back with their views and we have to consider it again.
So it doesn’t bother you?
No. Most of the time our view and the government’s view coincides. It is only at certain times that the press writes about it, so it appears as a… Justice Venkatachaliah, again, said in his speech: a little bit of tension is good.