Chief Justice of India Sharad Arvind Bobde retires on 23 April 2021, bringing to an end one of the longest terms in the post in recent years. His final act on the bench was set to be the hearing a suo motu case regarding the COVID-19 crisis engulfing the country, which comes perhaps a year too late.
One year ago, when the country went into lockdown because of the COVID-19 pandemic, and millions of migrant workers trudged home because of the Centre’s failure to bother making any plans for them when shutting down the country, the Supreme Court and CJI Bobde chose to remain non-reactive.
When PILs were filed begging the court to take action, CJI Bobde took everything the central government said – through Solicitor General Tushar Mehta – at face value. This included a bare-faced lie that there were no migrants on the road at the time, and a brazen bit of spin that blamed fake news for migrants hitting the road in the first place.
By the time the CJI realised things weren’t quite as rosy as the Centre had been saying, several weeks later, well, we all remember how bad things were.
The apex court belatedly took up a suo motu case for the migrants after coming in for fierce criticism from all quarters, which didn’t achieve very much, but still, they do say it’s the thought that counts.
A Final Chapter That Raises Question Marks
The manner in which new case which has eagerly been taken up by CJI Bobde to be heard on his last day at the office on Friday, 23 April is, a tad questionable, to say the least.
It began fortuitously with mining company Vedanta on Thursday asking for permission to open their shuttered Tuticorin plant to produce oxygen.
Its first steps were taken without much of a factual foundation: suggestions that the multiple high courts passing suo motu orders on the ongoing crisis were creating confusion (they weren’t, they were just holding the Centre to account, with zero contradictory positions).
It progressed into further questionable territory when Vedanta’s counsel, Harish Salve — a man who has taken public positions (not in an advocate’s capacity, remember) vociferously defending the Centre on every single question of public importance in recent times – was appointed amicus curiae for this suo motu case. Even though he isn’t even in India at this time of crisis.
The first order passed in the case dipped its toes in the sea of questionable premises, then dived right in. First it pronounced without any evidence submitted to them or cited that the high courts’ orders “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.”
It then goes on to ask all the parties before the high courts, including the hospitals who have desperately been approaching those high courts for help procuring oxygen, to submit arguments to the Supreme Court as to why “uniform orders” shouldn’t be passed by the apex court regarding oxygen supplies, essential drugs, vaccinations and lockdowns. Because this is the true need of the hour, of course.
The Solicitor General of India made sure to point out that he would inform the high courts that the Supreme Court had taken suo motu cognisance of the situation. Which he subsequently did at hearings before the Delhi and Madras High Court.
Thankfully as of now there has been no stay on the orders of the high courts, as the Bombay High Court has already pointed out, but not even the most reckless bookie will take odds that things won’t change after Friday’s hearing.
A hearing which also breaks with tradition as the CJI’s final day is normally a bit of a ceremonial day at the office – note that judges of the Collegium were already reportedly unhappy that CJI Bobde was trying to conduct Collegium business in the final weeks of his tenure, business normally left for the next CJI to handle.
Practice What You Preach?
It is wonderful that the CJI decided to swing into action despite the tradition of a more relaxed final day, given the current crisis across the country, what with all the oxygen shortages, lack of hospital beds, disappearing medicines, and the mystery of the vanishing vaccine plan.
It’s just that the Supreme Court didn’t really need to get involved at this time.
The high courts had already been looking at matters which were clear issues of urgency, from Delhi to Chennai. Rather than clubbing all states together, the high courts were taking up each local situation at a time, questioning the central and state governments, devoting sufficient attention to those matters rather than letting them get lost in a mountain of nationwide paperwork.
Ironically, this is an approach which CJI Bobde has spent the last year and more extolling, refusing to pass orders on police brutality during anti-CAA protests as the petitioners could go to the high courts, and saying he wanted to discourage people from filing Article 32 petitions that they are fully entitled to file in the Supreme Court, as they could approach the high courts. But now, suddenly, a high court-wise approach is a problem.
Is this because the high courts had passed orders on the relevant issues which contradicted each other? No.
Is this because the high courts were passing orders which were impossible for the Centre to carry out? No.
There is a third question that follows in this sequence to which the answer is yes, but I leave it to you fill it in.
An Eminently Forgettable Tenure
And so this case perfectly encapsulates the legacy of Sharad Arvind Bobde as Chief Justice of India.
A tenure of 17 months in which there have been no rulings on major constitutional matters, no matter how urgent – even though time has been found for pointless contempt of court cases. A tenure of 17 months during which no appointments have been made to the Supreme Court, even though there are five vacancies, four of which came up during this time.
A tenure of 17 months during which the government has not been held to account once, and the Solicitor General and Harish Salve have basically been given carte blanche to say what they want in case after case and not even be questioned.
Was the COVID-19 crisis an unprecedented challenge in this time? Yes, absolutely. But does the court deserve some pat on the back for keeping itself functioning during the pandemic? Absolutely not. It is the Supreme Court of India, the head of the Indian judiciary, it has a duty to the people of India to function and ensure justice is done.
The failure to hear arguments on urgent matters, whether the CAA, Kashmir, electoral bonds or even now the farm laws, cannot be excused by citing COVID-19. Not when the court could devote hearing after hearing to the Prashant Bhushan contempt case. The failure to rule on Siddique Kappan’s habeas corpus case for six months – even to dismiss it if necessary – cannot be excused when the court could (rightly) take up Arnab Goswami’s case and wrap it up in a day.
The failure to ask the right questions of law about the deportation of Rohingya refugees to Myanmar (that is, whether non-refoulement is part of our Article 21 obligations) cannot be excused. Not when the court is willing to dig up the Shaheen Bagh case after months of it being infructuous and then pass a judgment limiting the right to freedom of assembly that contradicts the very Constitution Bench judgment it cites to support its ruling.
CJI Bobde’s tenure will be remembered only for how little it can be remembered for. There were precious few judgments of consequence and whichever ones were passed (for good or for bad) had nothing to do with the CJI.
When urgent issues were posed to him, he chose to ask the wrong questions. The Rohingya deportation case is an obvious example, but think also of the farm laws. Where instead of delving into the constitutionality of the farm laws, a committee was set up to talk to the stakeholders which submitted its report late, offered no answers to the constitutionality questions, and basically achieved nothing.
And of course the rape case where he asked if the alleged rapist was willing to marry the survivor – even though she was a minor and this wasn’t an example of sexual intercourse on the pretext of a promise to marry.
This suo motu case on the COVID-19 second wave will go down as his final act before passing the baton to Justice NV Ramana.
The nation is in crisis, and any failures by the Centre and the States are matters of life and death, where time is of the essence and there is no time to adjourn cases and let the Solicitor General ‘get instructions’ while Mr Salve says ‘the heavens will not fall’.
We can only hope that CJI Bobde does what he has done best during his 17-month tenure: nothing at all.
[UPDATE: Harish Salve successfully asked the court for permission to recuse himself from the proceedings because of the uproar against his appointment. Solicitor General Tushar Mehta asked for an adjournment till Tuesday, despite what the court said about needing to tackle a national emergency. And thankfully, CJI Bobde did indeed do nothing at all.]
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