The appointment of Justice Sharad Arvind Bobde as the Chief Justice of India (CJI) gives fresh hope to all the stakeholders in the administration of justice. It comes at a time when the Supreme Court’s standing amongst the people has greatly eroded. The Supreme Court has not only stopped being the protector of the fundamental and other constitutional rights, but has also failed to act as the guardian of the rule of law. Its role must be judged in the context of politically sensitive cases involving citizens, opposition parties, activists and executive actions in day-to-day governance. In these areas, the Court has virtually deferred to the executive instead of stepping in to restore constitutional rights and values in letter and spirit. The Court’s performance in routine matters, of course, is outstanding. But the independence of the judiciary is judged only on the touchstone of its decisions given in politically-sensitive matters.
The single-most important reason for this is the power of the CJI to constitute benches and allocate cases as the master of the roster. The judgment of its Constitution Bench in Campaign for Judicial Accountability and Reforms versus Union of India & Anr., delivered on November 10, 2017, has created a piquant situation resulting in exercise of absolute power by the CJI. So, a new but questionable jurisprudence has developed, especially on the review of administrative actions on account of sealed and covered hearings without affidavits by governments, bias and recusal amongst others.
Consequently, the outstanding work done by other judges is overshadowed. Lawyers and litigants are virtually helpless in either preventing or correcting this erosion. The Bar Association, far from being the watchdog, has been complicit in this unfortunate exercise by chief justices.
An independent and strong judiciary is a basic feature of the Constitution. Yet, the Court has allowed itself to be weakened. Perhaps, B R Ambedkar was right in saying that although the CJI is a very eminent, person, “the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have…” Justice Bobde has a tough road ahead to prove Ambedkar wrong.
During the Constituent Assembly debates, member after member yearned for an independent judiciary but were apprehensive. Ambedkar’s response was: “…I quite agree that the point raised is of greatest importance, there can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself, and the question is how these two objects could be secured…and I have said that the relation between the executive and judiciary are so separate and distinct that the executive has hardly any chance of influencing the judiciary.”
These fears were perhaps not unjustified. Perhaps the Constituent Assembly was conscious of a future India, which would have a naturally soft approach of the Court towards executive actions, as in ADM Jabalpur the rule of Indira Gandhi. In recent times, decisions in the Birla Sahara case, CBI director’s case and Rafale amongst others, have caused immense discomfiture among those who love and respect the Court. The Restatement of Values of Judicial Life (as adopted by the Full Bench of the Supreme Court on May 7, 1997) states that justice must not be merely done but also must be seen to be done. The behaviour and conduct of members of the higher judiciary must re-affirm people’s faith in the impartiality of the judiciary. And that “every judge must at all times be conscious that he is under the public gaze”.
Judges must remember words of Justice H R Khanna in his powerful dissent in ADM Jabalpur. said: “What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, can we also not say with justifiable pride that this sacred land shall not suffer eclipse of the Rule of Law and that the Constitution and laws of India do not permit life and liberty to be at the mercy of absolute power of executive, a power against which there can be no redress… The question is whether the laws speaking through the authority of courts shall be rendered mute because of such threats.”
Justice Bobde is an experienced judge and his approach is unbiased, non-political and justice oriented. He is courteous, hears all and has judge-like qualities. His approach towards Article 21 is refreshing as one can see it in summary dismissal of SLPs in R.S. @ Ramabhai Bhagora v. CBIand connected matters against the judgment of Bombay High Court (04.05.2017), reversing the acquittal of many accused in Gujarat riot case. Similarly, his judgment in Mubin Shaikh v. State of Maharashtra reversing the order of bail to the accused in a killing of young Muslim youth is positive when he disapproved the observations of the High Court that, “the fault of deceased was only that he belonged to another religion. I consider this factor in favour of applicant/accused…”, by reminding the judiciary that “we have no doubt that a Court fully conscious of the plural composition of the country while called upon to deal with rights of various communities, cannot make such observations which may appear to be coloured with a bias for or against a community…” Bobde’s bench again declined bail to Sajjan Kumar convicted by Delhi High Court in an anti-Sikh riot case while admitting his appeal for hearing.
But one hopes that he will function as the master of the roster in an independent and objective manner. The Court comprises of outstanding and independent judges and each of them is capable of handling even politically-sensitive matters. So, there is no reason to assign them to a particular bench only. If this trend is reversed, Justice Bobde would have achieved a lot in re-stating the independence of the Supreme Court.
However, his photograph with P K Mishra, Principal Secretary to the Prime Minister, on the day of the issuance of his warrant, was dismaying. Perhaps Justice Bobde did not realise that he would be splashed on the front pages of newspapers across the country with Mishra so as to suggest proximity between him and the prime minister. This was surely avoidable because the same May 7, 1997 document says: “A judge should practise a degree of aloofness consistent with the dignity of his office.”
Hopefully, the chief justice designate will dispel any wrong message sent to the judiciary and the nation in time to follow with his decisions and actions.
This article first appeared in the print edition on November 6, 2019 under the title ‘Raise the bar’. The writer is a senior advocate at Supreme Court of India