Mouse Under the Throne: The Judicial Legacy of Sharad A. Bobde
As of this morning, Sharad Bobde is no longer be the Chief Justice of India.
EVASION, hypocrisy and duplicity marked the 17 month tenure of the outgoing chief justice of India, with the central executive ending up favoured each time. On the date of his retirement, not one of the five constitutional matters pending had been substantively heard or decided.
As on previous occasions when a CJI retires, I offer here an assessment of the legacy of the outgoing chief justice. In the case of chief justice, Bobde, this might seem a somewhat difficult task. What can one even say about a tenure that lasted 17 months, through a particularly stormy time, and yielded precisely zero judgments of constitutional import, other than a late set of guidelines on the appointment of ad-hoc judges?
But, as we shall see, the absence of constitutional judgments does not mean that CJI Bobde did not enjoy a hugely consequential tenure. Through a refusal to hear cases (judicial evasion), shoddily reasoned “interim orders” (hypocrisy), and the arbitrary allocation of cases under the “master of the roster” powers (duplicity), his tenure saw the further acceleration of trends begun under his predecessors: that of the supreme court, in effect, turning into an executive court. The difference is that under his predecessors, there were still occasions when the supreme court continued to act like a “court”, as we understand it. Under CJI Bobde, there was very little evidence of that.
I preface this analysis with three caveats.
First, many of the interim orders that I will discuss were per curiam, i.e., authored and signed by all the judges on the bench. While CJI Bobde, by virtue of being the chief justice, headed those benches, in formal terms, he was not the sole author of those orders: the “bench”, as a whole, was. The reason these orders are discussed as CJI Bobde’s legacy is that, as any observer knows, most puisne judges rarely disagree with the senior judge on the bench. Disagreement is even rarer when the senior judge is the chief justice. Thus, while this analysis is not meant to absolve puisne judges of their responsibility in being co-signatories to the orders that I will critique, its central thesis – that they constitute the legacy of CJI Bobde – remains intact.
Secondly, it may be argued that conducting constitutional hearings with multiple judges and a battery of lawyers was no longer feasible once the pandemic began, and the lockdown was imposed. To this, two answers may be made. First, the supreme court was functioning normally during the first five months of CJI Bobde’s tenure, but the only significant constitutional hearings were repeated attempts to send the Sabarimala case to a bench of nine judges, and the referral hearing in Article 370. More importantly, however, during the pandemic, constitutional courts all over the world made arrangements to hear significant cases online. And a five-judge bench of the supreme court itself heard the Maratha reservation case earlier this year. Consequently, the pandemic itself was no reason for the court not to schedule – and hear – matters of constitutional import.
Thirdly, in view of various remarks that fell from the Supreme Court on CJI Bobde’s last day, it feels important to reiterate that critique is neither personal, nor “destructive” of the institution. Supreme Court judges wield tremendous power, and the CJI even more so. My earlier analyses have always taken the view that the function of words is to call power to account, and – when necessary – to do so adversarially. This assessment of CJI Bobde continues in that spirit.
TWO DAYS IN SPRING
CJI Bobde’s tenure is perhaps best summed up by what transpired in court number 1 of the supreme court on two days.
Evasion on electoral bonds
On March 26, 2021, a three-judge bench comprising CJI Bobde and Justices Bopanna and Ramasubramanian passed an interim order refusing to stay the electoral bonds scheme, which allows for limitless, anonymous corporate donations to political parties. The electoral bonds scheme had been notified at the beginning of 2018, and been immediately challenged thereafter. At the time, Dipak Misra was CJI. He did not list it for substantive hearing. Then came chief justice, Gogoi, who initially followed suit, then listed the matter on an urgent application just before the 2019 general election, and hypocritically claimed that there was not enough time to hear such an important case.
This judicial hypocrisy was raised to the level of fine art during the tenure of CJI Bobde. He also did not hear the matter throughout his tenure, before listing an urgent interim application just before the (still-ongoing) state elections, and granting it one day of hearing. Going further than CJI Gogoi, CJI Bobde wrote in his order that the fact that the “bonds had been released without impediment in 2018, 2019, and 2020” was one of the grounds why there was no urgent necessity for a stay. The supreme court’s own evasion of the case, thus, became a ground for it to deny relief to the petitioners.
Not only that, however, CJI Bobde’s order went on to grant a presumptive seal of approval to the electoral bonds scheme, based on a series of logical leaps and absurd presumptions. A starring role was played by the court’s observation that electoral bonds were not, actually, anonymous. Anyone who wanted to know who was donating to a political party could simply look up companies’ financial statements, political parties’ statements of accounts, and then engage in a “match the following” exercise.
However, as commentators pointed out, this was simply false, as a matter of law and fact: thanks to various legal amendments that accompanied the enactment of the electoral bonds scheme, a “match the following” exercise was not possible. That apart, even if it was, this was an astounding argument coming from a court that has, in the past, piously commented on the “right to know” in the context of elections: that citizens, in order to find out who funds political parties, would have to access a political party’s statement of account, look at the numbers, access (all?) companies’ annual statements, look at the numbers, and see if anything matched. That CJI Bobde believed this was a legitimate burden to foist upon the voting public was extremely revealing. Not only was the order shoddily reasoned, but even if the arguments had been correct on their own terms, all they revealed was contempt for citizens’ rights, and a bending-over-backwards to shield the government from scrutiny. We should note, parenthetically, that electoral bonds are asymmetrical, in that the government – via the SBI – is in a position to know who is donating money. This is why judicial evasion in this case has the effect of benefiting the central executive.
Deportation of Rohingya refugees
Later that same day, CJI Bobde, sitting in a bench of three, heard a case involving the deportation of Rohingya refugees to Myanmar. The hearing stood out for a range of unverified statements made by government counsel, CJI Bobde’s apparent bewilderment that Article 21 applied to non-citizens, and – in particular – his refusal to hear counsel for the UN special rapporteur. This last was another particularly hypocritical move given that the supreme court has, over the previous four decades, built its reputation on the basis of how it has relaxed the rules of standing in order to protect fundamental rights.
A few days later, however, the bench’s order on the hearing surpassed even his order in the electoral bonds case. The order ignored every contention that had actually been raised by petitioners’ counsel. It recorded “serious allegations” by the Union of India (pertaining to national security and to “touts”) without any scrutiny. And on the issue of ongoing political persecution in Myanmar, which was directly relevant to the principle of non refoulement, it made the wholly illogical remark: “we cannot comment on what is happening in another country.” In short, CJI Bobde’s bench condemned the refugees to be deported to a country that had engaged in a genocidal war of persecution against them, in an “interim order” that could not muster up a single legal – or logical – argument in its defence.
Hypocrisy on Covid crisis
The second day was April 22, one day before CJI Bobde’s retirement. As India reeled under the second wave of Covid-19, a number of high courts sprung into action, to protect citizens’ right to life: the Delhi high court and the Bombay high court passed crucial orders on the availability of oxygen supply. The Delhi high court, indeed, sat till after 10 pm to ensure that oxygen reached hospitals so that patients’ lives could be saved. The very next day, however – acting on an application filed by Vedanta Ltd, asking that it be allowed to reopen its closed plant for the purposes of manufacturing oxygen – the court created a “suo motu” petition with respect to Covid-19. It appointed Vedanta’s counsel, Harish Salve, as an amicus (he withdrew the next day). It then passed an extraordinary order justifying what was effectively an attempt to interfere with high courts that were doing their job. CJI Bobde – joined by justices Bhat and Rao – noted that: “the high courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise.”
Now this is a very serious accusation, and one would expect that when the supreme court effectively accuses high courts of acting to benefit their own jurisdictions, it would be accompanied by unimpeachable evidence. However, there was zero – yes, zero – evidence that accompanied the order. CJI Bobde and his brother judges did not produce a single high court order that, according to them, had “slowed down the availability of resources” to any group. And it was on the basis of this unproven assertion – along with many other dubious claims that the court issued notice and asked various petitioners to show cause why “common orders” should not be passed on an extraordinarily broad range of issues, from the “supply of oxygen” to the “method and manner of vaccines”.
Once again, the judicial hypocrisy was striking: throughout his tenure, CJI Bobde had repeatedly told petitioners to “approach the high courts”, that “we are trying to discourage Article 32 petitions”, and – in an extra-judicial interview during the first wave of Covid – publicly taken an “executive knows best, the courts should refrain from interfering” line when it came to judicial scrutiny of state action during the pandemic.
The day after the hearing – i.e., April 23 – the supreme court bench observed that people were misrepresenting its order, especially as it had not stayed the high court proceedings. This is disingenuous: the absence of a formal stay (which would have been truly indefensible) is not a ground for praise, nor does it indicate an absence of interference. A record of oral arguments before the court shows that government counsel specifically stated that they would inform the various high courts that the supreme court had taken cognisance of the matter. Indeed, later the same day, government counsel did exactly that. It is a different matter that the various high courts elected to proceed with the cases before them nonetheless. That apart, the supreme court’s order, in asking petitioners before the various high courts to “show cause” why common orders should not be passed on a range of issues is problematic on its own terms, as we shall see below.
A Common Thread
There is a pattern to these three orders which – taken together, and other than the Article 224A guidelines – are probably the only significant orders on constitutional issues that CJI Bobde’s benches passed during his tenure (other than the initial, wholly unprincipled expansion of the court’s review jurisdiction of the Sabarimala issue, and whose unprincipled character was revealed in how the court refused to apply it in the first significant review case before it after Sabarimala, i.e., the Aadhaar Review.
First, they were all “interim orders”, passed while the underlying substantive petitions remained unheard. In the first two cases (i.e., electoral bonds and Rohingya refugees), the substantive petitions were pending for years, a classical form of judicial evasion where the court’s failure to decide a case benefits the central government; in the third case, the basis of Vedanta’s application was a pending petition that was being heard by another judge, and taken away from him, presumably by the chief justice exercising his opaque, uncanalised “master of the roster” powers.
Secondly, they were passed on the basis of factual and legal assertions that were either entirely speculative or blatantly untrue.
Thirdly, arguments inconvenient to the conclusion were simply ignored.
And fourthly, the outcome, in each of these cases, favoured the central executive. In sum, the effect of the supreme court’s conduct was to turn it into an extended arm of the executive, either through silence or through unreasoned decrees.
Who Benefits from Judicial Evasion
In an earlier article, I have defined “judicial evasion” in the following terms:
… by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue.
At the time that CJI Bobde’s tenure began, in November 2019, the following important constitutional cases were pending adjudication:
o The constitutional challenge to the effective abrogation of Article 370, and the splitting of the erstwhile state of Jammu & Kashmir into two union territories (from August 6, 2019)
o The constitutional challenge to EWS reservations (from January 10, 2019)
o The constitutional challenge to the Aadhaar amendment ordinance (later the Act) (from July 2019)
o Judicial review over money bills (from November 13, 2019)
At the beginning of CJI Bobde’s tenure, the constitutional challenge to the Citizenship Amendment Act (CAA) also came to Court.
His tenure, as mentioned above, lasted 17 months. On the date of his retirement, not one of these cases had been substantively heard or decided. In each of these cases – with the possible exception of the CAA – judicial evasion directly favoured the central executive. In the 370/Union Territory cases, it allowed the continued consolidation of a status quo that has, by now, turned into a fait accompli (recall that although the case itself was not before the CJI, the power of constituting constitution benches remains within his sole prerogative). In the EWS reservations case, in the absence of a stay, the reservations in question continue. The Aadhaar amendment ordinance – which sought to revive provisions of the Aadhaar Act that were struck down by the supreme court in the Puttaswamy judgment – continues to be in force. So does the Aadhaar Act itself, which would fail if the court was to find that judicial review over speakers’ certification of money bills was indeed permissible (although with Aadhaar, once again, fait accompli means it is difficult to see how ground realities will now be reversed, regardless of legal outcomes).
Seventeen months. Not a single judgment on any of these constitutional issues. There is little more to say, other than to point out that under CJI Bobde, the supreme court facilitated the creation of multiple faits accomplis that directly benefited the central executive.
Hypocrisy in Action
We have seen how the three “interim orders” passed by benches headed by CJI Bobde stand out for their lack of reasoning, reliance on incorrect or misleading facts and pro-executive outcomes. A fourth example is perhaps the most egregious of the lot.
In February of 2020, in a detailed and reasoned order, the Karnataka high court granted bail to 20 CAA protesters. The matter was appealed to the supreme court, where CJI Bobde – alongside justices Gavai and Surya Kant – stayed the bail order, thus ensuring that individuals who had been set at liberty by the high court would have to stay in jail pending trial. This order remained in force for six months, until in September 2020, the supreme court quietly lifted it. At no point did CJI Bobde’s bench provide any reasoning for why 20 men had to spend six months in jail, even after the high court had ordered their release. No reasoning was given for why the high court’s order was insufficient, or what changed in six months to make it sufficient. This, in other words, is rule by interim order, where CJI Bobde’s bench exempted itself from the obligation of providing reasons for its (hugely consequential) actions.
Duplicity: An Illustration
The Supreme Court of India has 29 judges. As might be expected, these judges hold very different views on a range of issues, including the interpretation of fundamental rights. Some judges set a very high store by personal liberty, and believe that the state ought to be held to strict account when it curtails the liberty of citizens. Other judges view personal liberty as something of a nuisance, and see nothing wrong with individuals spending months or years behind bars, without trial.
This multiplicity of views does not mean, however – as some scholars have argued – that “there is not one supreme court, but 14 Supreme Courts of India.” This is not true for the simple reason that, after a series of judgments delivered during the tenure of CJI Dipak Misra, the chief justice, as master of the roster, has absolute, opaque, and uncanalised power in assigning cases to specific benches: others abide our question, thou art free. Let us therefore be very clear that until the master of the roster system is reformed, there is one supreme court, and that is the supreme court of the chief justice of India. It follows that when that court speaks with a forked tongue, the responsibility lies on precisely one set of shoulders – the CJI.
As an example of this forked tongue under the tenure of CJI Bobde, compare the contrasting fortunes of two members of the media, Arnab Goswami and Siddique Kappan. Both were arrested and incarcerated at around the same time, in October/November 2020: the Maharashtra government booked Goswami for abetment to suicide, while Kappan was “picked up” while on his way to cover the Hathras gangrape, and later booked under the National Security Act. Petitions on behalf of both individuals landed before the supreme court: Goswami’s through a special leave petition challenging an order of the Bombay high court refusing him bail, and Kappan’s (initially) through a habeas corpus under Article 32 of the Constitution. (To forestall an inevitable – and flawed – objection, technically, the requirement for admission of a special leave petition is meant to be more stringent than that of an Article 32 petition, with the hint being in the word “special”.)
Goswami’s case was listed overnight, heard, and bail was (correctly) granted; in a judgment delivered later in the month of November, justice DY Chandrachud (correctly) stated that “even a day” spent in jail was a day too many, from the perspective of personal liberty.
None of that, however, had any bearing on Kappan’s case, which the CJI kept for himself. First, the CJI asked why Kappan’s lawyers couldn’t approach the Allahabad high court (a particular irony, given the CJI’s strenuous efforts to stop the high courts from functioning, on the penultimate day of his tenure). Then, on multiple days the case was adjourned because CJI Bobde was busy hearing the corporate dispute between the Tatas and Cyrus Mistry. As of date, more than six months have passed since Kappan’s arrest. The supreme court – that ruled on the validity of Goswami’s bail in a single day – hasn’t seen fit to pass a reasoned judgment. Kappan remains in jail, with the latest news being that he has been hospitalised with Covid.
If, as AG Noorani wrote, Chief Justice Gogoi had driven “a coach and four” upon the writ of habeas corpus – the last bastion of the individual against state overreach – then CJI Bobde came back for the remains, and drove a truck over them, just to make sure that the writ was truly dead.
As I have said above, this is not a case of poly-vocality, or the dissonance of jurisprudence which comes with 29 judges in a single institution. That excuse cannot fly when the chief justice retains absolute powers of case allocation. It is, then, not dissonance, but duplicity: duplicity in the exercise of the powers of the master of the roster, which in the context of the structure of the supreme court, have transformed into substantive powers to direct the outcomes of cases. This is, of course, a single example. They could be multiplied.
CONCLUSION: THE MOUSE UNDER THE THRONE
This critique is limited to CJI Bobde’s judicial orders, and to his conduct as the master of the roster. I have not, therefore, considered a range of problematic statements made in court, such as, for example, “we will hear the case when the violence stops“, “the RTI is being misused“, and “women should not be at protests.” These are on the record, and history will judge.
Some commentators have classified chief justice Bobde’s tenure as that of a CJI who, effectively, did nothing in the face of multiple crises. This is a tempting – and not entirely incorrect – position to take. After all, it was under the stewardship of CJI Bobde that the supreme court, for all practical purposes, and barring a few honourable exceptions, went missing during the first wave of Covid-19, its behaviour – and deference to the central executive – particularly egregious during the migrants’ crisis; and it was under the stewardship of CJI Bobde that vital constitutional cases went into cold storage, if not buried altogether.
In my view, however, this would be a mistake. When summing up the tenure of CJI Gogoi, I wrote that he had overseen the rise of the executive court, a court that spoke the language of the executive, and had become indistinguishable from it. Under CJI Bobde, this process was accelerated, but in a more insidious form: because, while you can critique a judgment, it is much harder to critique a non-judgment, or a five-page interim order (although the shoddiness of the interim orders in question, as pointed out above, makes them fail even on their own terms). It is much more difficult to show how inaction has the effect of benefiting the central executive and to unpack judicial evasion, rather than to show how a judgment is flawed in its understanding of fundamental rights and state power. But the entire tenure of CJI Bobde, as we have seen, was either evasion or judgment by interim order, where in either case, and invariably, the executive always prevailed.
Thus, perhaps the best image for understanding where CJI Bobde has brought the supreme court is this: in classical literature, the judiciary is sometimes called “lions under the throne” (via Bacon). The implications, for present-day jurisprudence, are obvious: the task of the judiciary is to keep a check on the rulers without supplanting them. But now think of a mouse under the throne, who sometimes squeaks, and sometimes ventures out to bite the toes of anyone coming before the ruler. One need not press the image too hard, but only say: a judiciary on its way to becoming a mouse under the throne is a sad sight indeed.
Courtesy: The Wire