Former Chief Justice SA Bobde is perhaps not fond of the written word. What else can explain the fact that he has authored only 68 judgments in his seven years in the Supreme Court, seventeen months of those as the Chief Justice of India. Of course, while the bar and the bench addressed each other through screens for the better part of the last year, why he had so little to say even prior to that we’ll never know. Justices Ramana (157 judgments), Nariman (304), Lalit (262), Khanwilkar (208), Chandrachud (354), all junior to him in the Supreme Court, have already authored a far greater number of judgments. But for his tumultuous tenure as Chief Justice and master of the roster, mostly during the pandemic, his stay in the Supreme Court would have been unremarkable.
His judgments on Constitutional law, all four of them, are worth paying some attention to.
In Poojaya Sri Jagadguru Mate Mahadevi v State of Karnataka, Justice Bobde upheld the banning of a Kannada book called “Basava Vachana Deepthi”. The constitutional question at the heart of the matter was whether an individual’s interpretation of her own religion, even if found outrageous, could be banned. The High Court failed to engage with this question in any meaningful manner, looking at the entire matter as purely a criminal law issue. The Supreme Court should have dealt with Article 19(1)(a) [Freedom of speech and expression] and how it interacts with section 295A of the IPC [Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs] and CrPC Sections 95 [Power to declare certain publications forfeited and to issue search warrants for the same] and 96 [Application to High Court to set aside declaration of forfeiture], especially when the matter was argued on this plank for four days before it. Justice Bobde’s bench (the order doesn’t identify the author) dismissed the matter in two laconic paragraphs, as if it were a routine department appeal in a tax case. To put simply, a book ban was upheld by Justice Bobde without a single reference to Article 19(1)(a).
The order rejecting the stay on the electoral bonds scheme was equally bizarre. This order too does not identify the author but was read out on the day of the pronouncement by Justice Bobde.
The first issue raised by the petitioners was that campaign funding should not be anonymous, since the public had the right to know who the persons behind a political party are, and the fact that anonymity could lead to kickbacks. This is a constitutional question, and should have been dealt with at that level. But Justice Bobde dismissed this with a laughable suggestion that persons could do a ‘match the following’ between accounts of a company and the accounts of a political party. The electoral bond being a bearer bond is freely transferable (even though the scheme officially prohibits trading, there is no way to check because the bond doesn’t carry the name of the purchaser); it could have changed hands many times between the company that purchased it and the party that encashed it. A company may buy many bonds and distribute them amongst many political parties. A party may deposit some bonds today and some tomorrow. One doesn’t even have to think too deeply to realise that it is impossible to ‘match the following’.
Did Justice Bobde really imply that a citizen who wants to know who funded which party has to download and pore over the accounts of every single company in India and match entries in each of their accounts with the accounts of a political party? The order does not even deal with the information asymmetry argument – that the party in power can find out all information on campaign funding, but the other parties cannot. It does not deal with decades of Supreme Court jurisprudence on the electorate’s right to know all relevant facts about candidates and parties before voting. Just as in the case of the book ban, Justice Bobde passed an order on a constitutional issue with no reference to the Constitution.
Even in referring to the Constitution, Justice Bobde seemingly showed a lack of familiarity with the text that was disturbing for someone in the higher judiciary for over two decades. In the hearing concerning the deportation of Rohingyas, he was surprised that Article 21 on right to life applied to non-citizens. The final order shows a stunning lack of humanity, and has been widely criticised. His inconsistent stand on the Supreme Court’s jurisdiction to directly hear petitions concerning fundamental rights violations under Article 32 has been repeatedly written about. In certain cases, like journalist Siddique Kappan, who was arrested by the Uttar Pradesh police while on his way to Hathras, he said that the petitioners would have to approach the High Courts first, but entertained other petitions like television anchor and Republic TV Editor-in-Chief Arnab Goswami’s plea against his summons from the Maharashtra Speaker. He has also admitted mischievous petitions like the one challenging the Places of Worship Act, 1991, while he seemed disinclined to hear a challenge to the validity of criminal contempt.
Further, in Justice Bobde’s concurring opinion in Puttaswamy v Union of India, where the Supreme Court upheld the right to privacy as a fundamental right, he finds that Article 26 [Freedom to manage religious affairs] represents the right of a community to be left alone from State interference from the State. He reasons that this is also a facet of the right to privacy. In this sense, Justice Bobde conflates “liberty” and “privacy” – a distinction Justice Nariman brings out with some clarity in his concurring judgment. There is another distinction though. Privacy is, in every one of its conceptions, an individual right. By painting an individual right and one given to the community with the same brush, without even reasoning it out, Justice Bobde has, in his enigmatic style, opened a window to a world that no one asked to see.
The last order is not really on constitutional law, although it is likely to have far reaching constitutional implications. Like much of Justice Bobde’s judicial work, it can hardly be called a judgment. While the Sabarimala review was opened up and then referred to a larger bench, the judgment had not been stayed. In fact, till date, the judgment stands. But when two women prayed that the Supreme Court may enforce the order, Justice Bobde refused, orally commenting that the issue was an ‘emotive’ one. When the top court refuses to enforce its own order, what sanctity is left of any of its orders? Isn’t this a bigger threat to the institution than all those alleged contempt petitions against advocates and comedians?
There is another tailpiece to this Sabarimala case. A probable conflict was pointed out between the seven-judge bench decision in Shirur Mutt and a five-judge bench decision in Durgah Committee. The way to resolve this conflict, if it does exist, is obvious – the seven-judge bench decision prevails. At best, the matter could have been referred to a seven-judge bench to resolve any conflict. Chief Justice Bobde, on his own, constituted a nine-judge bench to take up a staggeringly wide array of questions, many of which do not even concern the alleged conflict between the two judgments. This sets a dangerous precedent for future Chief Justices; on pet issues, they could use their master of the roster powers to constitute benches at will. But for the pandemic, this nine-judge bench decision would probably have been his grand contribution to constitutional law.
Outside of constitutional law, there are two judgments from benches he sat on that do not identify their author that deserve most attention. In the Ayodhya land dispute, the Supreme Court did not find evidence of a temple existing prior to the Babri Masjid being built. In any case, the court also observed that the existence of a temple underneath the mosque would not lead to the finding that the property belonged to the Hindu parties. The court also agreed that neither of the parties were able to show exclusive possession of the inner courtyard. Yet the court gave the entire property to the Hindu parties. The court held this way because, in its opinion, the property was a ‘composite whole’. The decision is questionable on many counts, most important of those being that the conclusions do not flow from the reasoning at all; if anything, the reasons seem to contradict the conclusions drawn.
A bulk of Justice Bobde’s judicial time as Chief Justice was devoted to resolving the Tata Sons dispute with its former Executive Chairman Cyrus Mistry. Should he have done this while the country was ravaged by COVID-19, important constitutional law issues on the validity of the electoral bonds, the RTI amendment, Article 370 and the Citizenship Amendment Act? That apart, the judgment in TCS v Cyrus Investments is itself on shaky ground on some points. The National Company Law Appellate Tribunal (NCLAT), in its order, had failed to render a finding on many issues that were considered by the National Company Law Tribunal (NCLT). The final order was in favour of Mistry’s reappointment. When the matter came before the Supreme Court, it held that since the NCLAT had not ruled on some factual findings of the NCLT, those findings had become final, especially because Mistry had not appealed on the aspect of NCLAT not rendering a finding on those issues. This is a wrong approach because a burden cannot be cast on a victorious party to file an appeal on issues that were not considered by the lower authority, and further, the party cannot be precluded from arguing these issues before the Supreme Court merely because it hadn’t filed such an appeal. Even on company law, the court seems to suggest that independent directors have a greater duty to put the company’s interests in the forefront than directors who represent certain shareholders or creditors. This turns almost 150 years of law on directors’ fiduciary duty to put the company’s interest first on its head.
I will end this analysis with the events of the last two days of Justice Bobde’s tenure. In the wake of the second wave of the pandemic, various High Courts across the country took up suo motu PILs, and even regular writ petitions by affected hospitals concerning the lack of oxygen, vital drugs, beds, and other measures. For reasons unstated, Justice Bobde’s bench took up a suo motu writ petition on these issues, and in the order observed that High Court decisions were creating inequalities by prioritising certain interests over others (presumably regional interests). The Supreme Court even issued notice to all parties appearing before the various High Courts in this suo motu petition. The law officers of the Central Government, on the same day, made representations before the High Courts of Madras, Bombay and Delhi that the Supreme Court was seized of the matter. While the High Courts went ahead to hear their respective petitions anyway, the Madras High Court observed that it did not want to create any confusion. It also observed that the matter may be posted for hearing again on April 26 “if it survives at all” in view of the submissions made about the Supreme Court proceeding.
Yet, on the very next day, Chief Justice Bobde and his companion judges took great umbrage about comments being made in the media about their order, and insisted that they never indicated that they wanted to take over the High Court petitions, despite clear indications in their oral observations and the written order.
In any case, emblematic of Justice Bobde’s tenure in the Supreme Court, after all that noise in that last hearing, the written word only records an adjournment.
Swaroop Mami is a musician and lawyer practising in the Madras High Court.