The Supreme Court of India in the last five years during the tenure of the last four Chief Justices of India (CJIs), has seen an unprecedented fall — from being an independent custodian of justice, to becoming an instrumentality of the government. After the tenure of former CJI Ranjan Gogoi , who oversaw the Ayodhya and Rafale verdicts, before retiring to join the Rajya Sabha , we thought the worst was behind us. We hoped that his successor, CJI S.A. Bobde would lift the Court out of this abyss and at least restore its independence from the executive. But, the nearly 18 months of his tenure has exposed a deep malaise in every aspect of dispensation of justice; from the administration of the Court; in the allocation of cases and benches; to presiding over matters related to the protection of civil liberties, securing the rights and the livelihood of the poor and marginalised; or in ensuring that the unconstitutional actions and policies of the executive are kept in check.
His tenure began in November 2019 with many important cases before him. There were over 100 petitions challenging the dilution of Article 370 and the reorganisation of the State of Jammu and Kashmir (J&K) into Union Territories . Soon after he assumed office, the Citizenship (Amendment) Act was passed, which led to another spate of petitions challenging its constitutionality. The CAA sparked widespread protests. We witnessed police confrontation at the Jamia University campus and the entry of gangs into Jawaharlal Nehru University who beat up students and teachers under the full gaze of the police. Thereafter, the city of Delhi witnessed engineered riots and the subsequent hounding of young students and other activists in the guise of an investigation by the Delhi Police. There were also other important cases pending before the Supreme Court, including the validity of electoral bonds , and the protection of Rohingya refugees. Then, early in 2020, COVID-19 overtook the country, and with it began the lockdown of the Supreme Court and thereafter other courts, and then the entire country — which led to the largest exodus of migrant labour from the large cities in India.
A powerful constitutional court like the Supreme Court of India must rise to these challenges, and it is in such challenging times that its mettle and independence is tested. It is here that the role of the Chief Justice of India — he is the master of the roster deciding the priority accorded to the hearing of cases, their allocation to Benches and setting the tone for the Court by his leadership — becomes critical.
The cases challenging the cataclysmic changes to the status of J&K remained unheard during his entire tenure as did the cases challenging the CAA. The main challenge to the electoral bonds and other changes to electoral funding, which have a fundamental bearing on our democracy, remained unheard. Applications for the stay of bonds being issued before every election, were never listed for hearing, and were eventually dismissed on the ground that the bonds had been around for several years; therefore, there was no need to stay them. Similarly, the main petition regarding the status of the Rohingya refugees and the protection to be accorded to them, remained unheard. An application to prevent their detention and deportation, was disposed of by Chief Justice Bobde, in complete disregard of constitutional and international law norms, on the basis that their fleeing genocide in Myanmar did not concern the Court.
The Supreme Court, under his stewardship, remained shut for physical hearing much of the time, resulting in fewer than 25% cases being heard in a Court, already reeling under a backlog and pendency of cases. Many habeas corpus petitions of people in detention were not heard for months, and thereafter summarily disposed of without deciding the main issue by relegating the petitioners to the High Courts.
Migrant labour exodus
During the nationwide lockdown last year, the country witnessed unprecedented suffering by migrant labour; there was a mass exodus of them from the big cities, and they suffered a huge loss of livelihood and income. Without any public transport, they were forced to walk hundreds of miles to reach their villages. Their case for relief in terms of food, wages and transport was initially heard by the CJI’s Bench. Unfortunately, the pleas on behalf of the migrant workers did not result in any relief to them with the Court saying it could not “supplant” the government’s wisdom on providing relief to the lakhs of migrant labourers across the country. The CJI remarked infamously during one of the hearings, “If they are being provided meals, then why do they need money?” It would be no exaggeration to say that the Court’s inhumanity and apathy towards the distress of the poor and marginalised reached its nadir during this time.
Far from being a custodian of citizens’ rights, CJI Bobde, while hearing the Kerala journalist Siddique Kappan’s habeas corpus petition (arrested while covering the infamous Hathras rape and murder case in Uttar Pradesh), noted that the Court had been discouraging people from approaching it under Article 32 . Mr. Kappan’s petition remained pending with repeated adjournments.
In the farmers’ protest case, the CJI appointed a committee of people, whose political neutrality was suspect, to examine the issues and commence negotiations with the farmers. These committee members had publicly supported the farm laws in the past.
Apart from his role as the master of the roster, the CJI also plays a pivotal role in judicial appointments. Unfortunately, here too, he failed to carry the collegium with him, leading to no appointments to the Supreme Court during his tenure, and very few appointments even to the High Courts. He did not even order the government to issue notifications for the appointment of judges where the collegium had unanimously reiterated its recommendations, despite the government procrastinating over them for long. The law laid down by the Court says that these are binding on the government.
The Chief Justice of India also plays a critical role in dealing with complaints against judges. During his tenure, the CJI received a serious complaint made by a Chief Minister of a State against one of the Court judges , with considerable documentary evidence of questionable land purchases. For over six months, the people in the country were not informed how the complaint had been dealt with, and whether any in-house committee (as per the law) has been appointed to, who the members of the committee were, and what their report was.
The same lack of transparency was visible in another case, where he was chairman of a committee examining allegations of harassment made by a woman staffer of the Court against his predecessor. His report, purporting to give a clean chit to his predecessor , was never allowed to see the light of day and not even provided to the complainant.
I have tried to search for the redeeming features in the CJI’s tenure. But to my dismay, the only positive intervention by CJI Bobde that I have been able to discover was his order in the West Bengal trees case , where he appointed an expert committee to examine the value of trees which are to be felled for any public project. In all other issues, the CJI has only caused disappointment with his silence, letting the executive have its way and even making strong remarks on sensitive issues and subjects. He has kept important matters pending, and has hardly intervened to provide any relief to the most marginalised or the weak in India.
As we bid farewell to Chief Justice of India Bobde, the Supreme Court must examine what has happened to what had once been called the most powerful court in the world and a beacon for many other courts across the world. As the Supreme Court turns the page on his tenure, let us hope that in the coming years, it can rebuild its legacy by asserting its judicial independence from the government and once again reclaiming its constitutional role as a citadel that establishes India’s constitutional values, guards its democracy, and protects human rights and dignity.
Prashant Bhushan is a senior public interest advocate practising at the Supreme Court of India