LIES, AND DAMNED LIES: A RESPONSE TO TRUTHS AND TALES
Updated: May 14, 2021
For I know your manifold transgressions and your mighty sins: they afflict the just, they take a bribe, and they turn aside the poor in the gate from their right.
-Amos 5:12, King James’ Bible
A law clerk of Former Chief Justice Bobde recently wrote an article in defense of his former boss, and in response to an incisive and searing commentary of his tenure by Manu Sebastian. The article begins with the day Chief Justice Bobde (as he then was) demitted office. But let us start with the critique even before Chief Justice Bobde took office. In the in-house panel which he headed, Ranjan Gogoi was acquitted of all charges. However, the staffer was subsequently reinstated. As a chairperson of that panel, CJI Bobde must answer two questions- If the staffer was wrong, why was she not dismissed from her job? Secondly, if she was correct, why did he not take action against Gogoi? The next controversy was when Justice Bobde took his warrant from the P.K. Mishra, Principal Secretary to the Prime Minister when he took the office. The picture made it to the front page of almost all leading newspapers. Mr. Dushyant Dave in his article in the Indian Express called this ‘dismaying’, and said that this might have indicated his proximity to the government. Little did Mr. Dave, and the country know, that this was a sign of the times to come, and that the CJI would be as Gautam Bhatia said, ‘Mouse under the Throne’.
The first defense of Chief Justice Bobde is that the people critiquing him have failed to recognize that the Chief Justice is human. But neither Justice Bobde’s critics, nor even the founding fathers had forgotten that the Chief Justice was, as Dr. Ambedkar put it, “.. a man with all the failings, all the sentiments and all the prejudices which we as common people have”. But I am sure, that despite his human failings, Chief Justice Bobde would have known that there were migrants walking on the road, and that the Solicitor General was misleading the court. His human failings were not an excuse for him to ignore the arguments of the petitioners in the Order in Rohingya migrant’s case, or to be flummoxed that Article 21 applied to non-citizens. Nor were they an excuse to not let the UN Special Rapporteur to assist the court.
The second defence of CJI Bobde is that he is not appreciated for his attempts at appointing Justice B.V. Nagarathna as what would perhaps be the first woman Chief Justice of India. However, in doing so, the author conveniently ignores the fact that the Collegium standoff was to avoid supersession of 32 other judges, including Justice Akil Qureshi. Former Judge of the Delhi High Court, Justice Kailash Gambhir notes that Justice Nagarathna can still be the Chief Justice, albeit for a shorter tenure if senior judges are not superseded. Supersession in itself, he notes, is a threat to judicial independence. That notwithstanding, Justice Bobde, as the Chief Justice is the proverbial ‘head of the judicial family’ and the Chairperson of the Collegium. It was his duty to ensure that the collegium could come at a consensus, and in failing to do so, Justice Bobde has failed to perform his administrative duties.
The author alludes multiple times (seemingly with contempt for it) to the freedom of speech, which Justice Bobde himself called the ‘most abused right.’ His tenure was if anything, a stringent clampdown on the freedom of speech with contempt cases being filed, heard, and decided against comedians, cartoonists and even senior lawyers. Freedom of speech is indubitably the most important right in a democracy, and CJI Bobde did much to harm it, and little to defend it. Throughout his tenure, both on the bench and off the bench, Justice Bobde alluded to how freedom of speech should be limited. He did so even in his speech on the Law Day in 2020. One can thus believe that was the view that he believed in, and not an off the cuff remark from the bench that was taken out of context.
The author would also have us praise Justice Bobde for ensuring that the Supreme Court kept functioning despite the pandemic. But the Indian Supreme Court was not the only court that ensured that important cases were heard.
Those accused Justice Bobde of judicial evasion are called ‘ignorant’. Gautam Bhatia defines judicial evasion as ‘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.’ If there was only one thing that would characterise his tenure, it would be judicial evasion. And it was not only the electoral bonds case, but also challenges to CAA, abrogation of Article 370, and judicial review over Money Bills. But what was most surprising was the act of judicial abdication that surprised most commentators in the challenge to the farm laws. CJI Bobde also constituted a four member panel to mediate between the farmer’s groups and the Government, with all four members of the committee having previously come out in support of the farm laws. Constitutionality of a legislation suddenly though an arbitrary judicial diktat became something that could be mediated. As Ranjan Gogogi said , ‘If you go to court, you don't get a verdict, all you do is wash your dirty linen.’ Bhatia, in an article noted ‘During the Constituent Assembly debates, there was a proposal that all cases involving fundamental rights be decided within a month. The fear was that the more time the court took, the more the government would benefit from the status quo. Recent events have confirmed this fear. In high stakes cases, time-sensitive cases, the court must ensure two things: that the judgment is timely, and that the judgment is clear.’ CJI Bobde’s tenure failed on both counts- neither were the judgements timely( in the previous three cases), nor were they clear (on the constitutionality of the Farm Laws)
Since the author began his article with a reference to Justice H.R. Khanna, it is only fitting that a response to that article also end with Justice Khanna. In his dissent in the ADM Jabalpur Case, he wrote “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…” In response to the question posed by Justice Khanna, the answer to the question during CJI Bobde’s tenure is a resounding no. Chief Justice Bobde caused considerable damage to the judiciary as an institution, in the minds of lawyers and the general public alike. Any attempts at whitewashing his tenure is a disservice to the great institution that Chief Justice Bobde once headed.