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Tuesday, May 11, 2021

CJI Bobde’s tenure was marked by reluctance to hear cases affecting people’s life, liberty

Although Justice Bobde did not run into any major controversy, he did court his own set of controversies.

Written by Rekha Sharma |
Updated: April 24, 2021 9:19:03 am
Chief Justice of India S A Bobde at his residence (Express photo/File)

Chief Justice of India S A Bobde demitted office on April 23 after completing a tenure lasting 17 months. When he took over from Chief Justice Ranjan Gogoi, the image of the Supreme Court, on a decline for the past few years, had reached its nadir. Justice Bobde inherited a legacy which, to quote the Supreme Court, deserved to be “buried fathoms deep”.

Suffice it to say that Justice Gogoi’s tenure remained mired in controversies ranging from allegations of sexual harassment against him and to his according least priority to civil rights claims in the wake of the abrogation of Article 370. The only case that he gave utmost priority to was the Ayodhya dispute. In the above dismal scenario, it was hoped that Justice Bobde would restore the people’s faith in the Supreme Court as protector of their fundamental rights and civil liberties.

Although Justice Bobde did not run into any major controversy, he did court his own set of controversies. During the height of last year’s lockdown, a PIL was filed in the Supreme Court seeking direction to the government to make payment of wages to migrant workers, who had been forced to travel hundreds of kilometres on foot to go back to their homes. Unfortunately, the Supreme Court bench presided over by Justice Bobde failed to give appropriate directions which could have helped mitigate their sufferings. It observed that it could not “supplant the government’s wisdom on providing succour to lakhs of migrant workers”. Worst still was the remark of the Chief Justice, who reportedly said, “If they are being provided meals, then why do they need money?”. It reflected a lack of compassion, and was against the essence and spirit of Article 21 of the Constitution to which the Supreme Court has given an expansive interpretation, holding that “the right to life” does not mean mere animal existence, but the right to live with dignity, including the right to food and shelter. To put the record straight, later a different bench of Supreme Court did pass certain directions, but only after a group of senior advocates had written to the Chief Justice and other justices, flagging the inhuman plight of thousands of migrant workers.

Equally insensitive was another remark of the Chief Justice in the case of Siddique Kappan, a Kerala journalist who was arrested by UP police on October 5 last year under the UAPA while he was on his way to Hathras to cover the gang-rape of a 19-year-old Dalit girl. A day after his arrest, the Kerala Union of Working Journalist filed a habeas corpus petition under Article 32 of the Constitution challenging his custody, which was listed on October 12. Even though the matter involved the liberty of a citizen, it was adjourned by four weeks, and during the hearing, the Chief Justice reportedly observed that the court was “trying to discourage Article 32 petitions”.

This was in stark contrast to what happened before another bench of the Supreme Court in a petition filed by editor-in-chief of Republic TV, Arnab Goswami, which also was under Article 32. Goswami’s petition was listed within a day of its filing, even though it was under objections. Not only did the court grant him interim bail, but also castigated the Bombay High Court for not examining whether a prima-facie case of abetment to suicide was made out, and observed that “constitutional courts have a duty to intervene when personal liberty is at stake”. When this fact was brought to the notice of CJI’s bench, CJI reportedly said that “each case is different”. Perhaps, the CJI was right. Kappan is no Arnab Goswami. On November 6, CJI Bobde, while issuing a contempt notice to the assistant secretary of Maharashtra legislative assembly, which also concerned Arnab Goswami, had reportedly observed: “No authority in the country can penalise somebody from coming to the court. What is Article 32 for?”

What has been noticed above should not be mistaken for off-the-cuff remarks. They are symptomatic of a larger malaise. What else can explain the fact that Article 32, described by B R Ambedkar as “the heart and soul of the Constitution”, and which is a doorway to the enforcement of fundamental rights, is open only to a privileged few, while lesser mortals are supposed to take a different and circuitous route? The general perception that the Supreme Court is shying away from hearing cases which affect the life and liberties of the people is not without basis. According to information gathered under the RTI, as on December 18, 2020, 1,072 cases relating to bail, and as on February 14 this year, 58 habeas corpus petitions were pending and waiting to be heard.

The challenge to Article 370 of the Constitution is lying in abeyance. The Citizenship Amendment Act, which had rocked the nation, and 140 petitions challenging the same are hanging fire. The hearing of the electoral bonds scheme of 2018, which allegedly gives advantage to the ruling party in matters of funding of elections has not been expedited, even though a number of elections have been held since it came into effect. In the midst of all this, a tweet by senior advocate Prashant Bhushan upset the Supreme Court so much that suo motu contempt proceedings were initiated against him, and a bench of three judges was spared to hear the same. But no bench was constituted to hear the aforementioned cases.

Is the SC waiting for those cases to become infructuous by sheer lapse of time? Meanwhile, Justice Bobde departs from the Court without leaving his footprints on the sands of time.

This article first appeared in the print edition on April 24, 2021 under the title ‘Letting down liberty’. The writer is a former judge of the Delhi High Court.

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