Twenty-one years after he was first appointed as a judge, the 47th Chief Justice of India Sharad Arvind Bobde retired today. Like his 17-month tenure as the top judge, his last day in court was equally eventful.
Chaos had broken out after senior advocate Harish Salve, who had been appointed as an Amicus Curiae in the top court's suo motu proceedings on the fallout due to COVID in the country, had just announced his desire to recuse himself. Salve cited his friendship with the CJI and the stringent criticism from fellow lawyers as a reason for recusal.
The outgoing judge—who turns 65 years of age on April 23, thus prompting his retirement—made a veiled reference to the incident during his farewell later in the evening. "This morning had a new cause to be speechless," CJI Bobde said during his virtual address. Attitude plus mutual respect for excellent functioning of the judiciary is necessary, he commented.
However, CJI Bobde then clarified that one need not become a mutual admiration society, nor become a lot where only compliments were paid and criticisms ignored.
Sanskrit, Harley Davidsons and Tennis: CJI Bobde
CJI Bobde took over as the top judge from former CJI Ranjan Gogoi in November 2019. However, the pandemic due to the novel coronavirus struck barely months after he took over forcing the physical closure of all courts across the country.
CJI Bobde learnt Sanskrit in his 50s, loves motorcycles—especially a Harley Davidson, and senior advocates recall he is an excellent tennis player. In fact, advocate Prashant Bhushan was found guilty of contempt of court for tweeting a picture of CJI Bobde's astride a Harley during the summer break last year. What was significant, the country was in the throes of the pandemic, and the CJI was seen without a mask.
In the past year, CJI Bobde has seen the transition of the physical functioning of courts to a virtual mode. Though plagued by glitches—the SC uses a little-known app called Vidyo, while several high courts function on Cisco Webex—the court managed to hear more than 51,000 cases virtually.
"COVID pandemic required all of us—primarily me because I was CJI—to learn new things about communication," the top judge said in his farewell. He acknowledged that initially, it was tough but it would be futile to ignore a move toward artificial intelligence despite its own challenges. "New kind of inequality has emerged…and it was augmented by the dependence on technology," CJI Bobde said underscoring challenges for those unable to take to the technological change.
Controversies and COVID
CJI Bobde comes from a family of judges. He was elevated as a high court judge 21 years ago and then to the Supreme Court eight years ago. He took over from former CJI Ranjan Gogoi—now Rajya Sabha member—who retired under a cloud, especially with the sexual harassment charges levelled against him. He was cleared of all charges, by an in-house panel led by Justice Bobde, who was next in-line to be CJI.
CJI Bobde also led the in-house panel constituted to probe corruption charges levelled by Andhra Pradesh Chief Minister YS Jagan Mohan Reddy against CJI-Designate NV Ramana. He too was cleared by CJI Bobde, and shortly after, the letter recommending Justice Ramana as a successor was sent to the Law Ministry.
CJI Bobde's 17-month tenure was marked by two waves of the COVID, and an accusation that it turned a blind eye to people's sufferings. Even his belated decision to take suo motu note of the complications arising out of COVID was met with criticism. At least seven high courts were already cognizant of the issue and some were even conducting daily hearings to monitor the situation in their respective states.
In March 2020, it accepted the Centre's submission that not a single migrant was walking home due to the enforced national lockdown imposed by Prime Minister Narendra Modi.
In June 2020, when the country came out of a brutal lockdown, CJI Bobde rejected a plea seeking permission for the Jaganath Puri rath yatra. "Lord Jagannath will not forgive us if we allow this" CJI Bobde had said on June 18. However, days later, this order was reversed and the rath yatra was allowed subject to conditions.
In the days before his retirement, CJI Bobde also stayed the Allahabad HC implementing a lockdown in five cities in Uttar Pradesh. The top court's order came after Solicitor General Tushar Mehta – representing UP, submitted that the "blanket lockdown would create immense administrative difficulties." Furthermore, the state has already imposed a number of guidelines (six of the 12) issued by the high court to arrest the spread of the infection, Mehta had added.
Earlier this year, CJI Bobde courted controversy when he asked a government official whether he would marry the victim he was accused of allegedly raping. The CJI's proposal flies in the face of the top court's own 2013 verdict where it said: "Rape is a non-compoundable offence, and it is an offence against the society and is not a matter to be left for the parties to compromise and settle."
Sabarimala, Aadhar, Ram Mandir, Appointment of Judges
CJI Bobde is the first CJI judge who did not recommend any judges to the Supreme Court despite it falling short of five judges for full strength. However, in one of the last judgments he delivered, CJI Bobde issued binding guidelines for the Intelligence Bureau and the Centre to complete the process of appointing judges once recommendations were made.
In 2013, Justice Chelameswar (now retired) and then Justice Bobde had stayed a government notification making Aadhar mandatory and made it clear that the State could not deny anybody benefits for the lack of the unique biometric number.
In 2017, CJI Bobde was part of the nine-judge bench which ruled that privacy was a fundamental right. In a concurring but separate opinion, CJI Bobde observed that privacy was a natural right that existed in other fundamental rights as well—including the right to life and free speech.
In 2016, the top court judge was part of the bench that ruled against the sale and stockpiling of firecrackers in Delhi due to environmental concerns. Before the Babri Masjid-Ram Janmabhoomi title dispute case achieved quietus, Justice Bobde had suggested mediation and was instrumental in the formation of the three-member committee led by former top court judge Justice FM Kalifulla. When that failed, in 2018 he was part of the five-judge Constitution Bench which accorded the land rights to Ram Lalla (Lord Ram as a minor).
IN March 2021, CJI Bobde once again formed a committee that would mediate between the farmers' unions and the Centre on the disagreement over farm laws. CJI Bodde stayed the implementation of the farm laws till further orders.
CJI Bobde also led the bench that dealt with challenges to electoral bonds—no stay on the sale of bonds—and the contentious Sabarimala matter which touches upon the issue of faith versus constitution.
In the Sabarimala matter, the bench led by CJI Bobde held that Supreme Court can refer questions of law to a larger bench in a review plea. It also framed seven questions of law on one's fundamental right to faith and religion. This matter will now be heard by a nine-judge bench.