Home विमर्श Opinion : Bobde, Unfit Judge for Constitutional Courts by Nitin Meshram and...

Opinion : Bobde, Unfit Judge for Constitutional Courts by Nitin Meshram and Rishi Raj Singh

Justice Bobde, who retired as the 47th Chief Justice of India, Advocate Nitin Meshram and Advocate Rishi Raj Singh are explaining why Justice Bobde was unfit for Constitutional Courts ?


Justice S.A. Bobde was elevated to the Supreme Court of India on 12th April 2013. Following the rule of seniority, his name was recommended as the 47th Chief Justice of India (CJI) by the then CJI, Justice Ranjan Gogoi. He was sworn in as the CJI on 18th November 2019. He retired on 23rd April 2021.

Justice Bobde has had tenure of more than 17 months as the CJI. However, it is a matter of scrutiny whether Justice Bobde’s judicious conduct conformed to the constitutional duties attached to the office of the CJI. Six months ago, in November 2020, Justice Bobde while hearing a habeas corpus petition filed by the Kerala Union of Working Journalists (KUWJ) said that the Supreme Court has been discouraging people from approaching it with petitions under Article 32 of the Constitution. It is pertinent to mention here that right from Baba Saheb Dr. Ambedkar’s remarks in the constituent assembly to the landmark case of L. Chandra Kumar v. Union of India (1997) the importance of Article 32 as the ‘heart’ and ‘soul’ of the Indian Constitution has time and again been stressed upon.

Patriarchal and anti-women attitude

Furthermore, Justice Bobde may be held accountable for shaking the confidence in the Supreme Court of a sizeable number of women. As recently as in the month of March this year, Justice Bobde received severe criticism for his observations when he said that husband may be a brutal man but can one call the act of sexual intercourse between husband and wife as rape? While it is true that marital rape is not an offence in India but this observation not only diluted the trust of women in the institution, but it also reasserted the orthodox presumption that the wife had provided perpetual consent for sex through marriage thereby robbing her off her agency and consent. In another incidence of March 2021, Justice Bobde while hearing another petition regarding rape told the accused that if he was ready to marry the victim, then the court might be able to help him, and if not, then the accused must lose his job and serve jail time. By suggesting that the perpetrator could marry his victim and thereby get relief from the Supreme Court, Justice Bobde had almost exposed the victim to a lifetime of injustice if the accused would have indeed decided to marry the victim.

Prejudices Vs Constitutional Obligations

Furthermore, in the month of January 2020, while dismissing a petition calling for declaring the Citizenship Amendment Act, 2019 (CAA) constitutional and its aggressive implementation filed by pro CAA activist, Justice Bobde remarked that the Supreme Court would only hear pleas on the CAA when the ‘violence stops’. This remark came at a time when there were about 60 petitions pertaining to the CAA and most of them were against the said Act pending before the Supreme Court. It is also to be remembered that this was the first time in the history of Indian Courts that the United Nations Human Rights Commission had intervened in the matter expressing deep concerns about the constitutionality of the Act. Majority of these petitions were filed with regards to the violence inflicted on the students of Jamia Milia Islamia, Delhi (JMI), Aligarh Muslim University, Uttar Pradesh and also contended that CAA be declared unconstitutional after judicial review. Many citizens took to social media expressing their anger against the remarks as they gave the impression that the common people were the perpetrators of violence whereas several media reports had revealed how the police had bulldozed into JMI campus, beaten the students and even detained them. Moreover, it was also reported that those who were badly injured were not allowed to receive proper medical treatment. There were also reports showing that police violence in BJP ruled states like Uttar Pradesh, Karnataka and Assam had resulted in several deaths. In addition to the above, there were reports of police brutality and torture in Delhi where the police comes under the central government which is currently being ruled by BJP.

Indifferent to constitutional and public interest matters

Not only the CAA but several other cases of constitutional importance remained unheard by the Supreme Court under the leadership of CJI Bobde. Top among them were the 103rd Amendment of the Constitution introducing EWS reservation for economically backward people other than SC/ST/OBC, challenge to the dilution of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019 which abolished the statehood of Jammu and Kashmir and converted them into Union Territories.

Moreover, the issue of the validity of fresh electoral bonds was also left unheard by the Supreme Court. It should be noted that RBI Governor Urjit Patel had called electoral bonds a ‘fraud scheme’ and that they had a ‘possibility of misuse, more through shell companies.’ In the absence of transparency with regard to political funding electoral democracy would be the loser in the long run. By not taking the matter regarding electoral bonds for hearing, the Supreme Court let go off a good opportunity to ensure free, fair and transparent elections and also to prevent ‘legalised corruption’ which is an outcome of anonymous electoral bonds.

Lackadaisical approach towards Rohingya Refugees

Furthermore, the Supreme Court adopted a lackadaisical approach while taking up the matter of Rohingya Refugees. A major contention in the Rohingya case was whether Rohingyas could be deported back to Mayanmar, a country where they are likely to be persecuted. The Supreme Court held that a right not to be deported is ancillary to right to reside or settle in any part of India (Article 19(1)(e)) which is a right available only to citizens. Eventually, Supreme Court allowed deportation of Rohingyas to Myanmar as per procedure established. It is to be noted that Supreme Court did not follow the Non-Refoulment principle which is a part of customary international law. India has ratified the ICCPR which ensures protection against torture or cruel, inhuman or degrading treatment (Article 7). It must be noted that Article 7 has been interpreted in General Comment No. 20 by Human Rights Committee and it includes protection against refoulment. Thus, the order of the Supreme Court was in complete disregard of international law.

Insensitivity on Mass Exodus of Migrant Workers  

Furthermore, the attitude of Justice Bobde with respect to the exodus of migrant labourers from one state to another due to sudden and unplanned lockdown exhibited apathy. Worse than remaining a mute spectator, the Supreme Court speaking through Justice Bobde asked in one of the hearings as to why did the migrant labourers need money if they were being provided meals?

Peculiar committee on Kisan Andolan

Even in the farmers protest case, the Supreme Court through Justice Bobde formed a committee to negotiate with farmers’ organisations. However, the members of the committee were not politically unbiased as members of the committee had supported the farm laws publicly in the past. Due to this Justice Bobde received criticism that his conduct was not impartial. He also refused to decide the constitutionality of controversial farm laws through simpliciter adjournments. By doing this, many have alleged on social media that, he was favoring the Modi government.

Furthermore, a 3 judge bench headed by Justice Bobde referred the matter regarding the constitutionality of 10% EWS quota to a larger bench of 5 judges. The question before the 3 judge bench was whether reservation can be prescribed only on the basis of economic criteria, and not social and educational backwardness? It appears that Justice Bobde again shied away from deciding a matter critical to the functioning of a representative democracy.

Conflict of Interest 

Furthermore, in a recent controversy regarding transfer of cases which were pending before 6 High Courts monitoring state’s response to Covid-19 pandemic, the Supreme court led by Justice Bobde ordered them to be withdrawn to Supreme Court. Moreover, Justice Bobde appointed his close friend, class mate and childhood buddy Mr. Harish Salve, who was representing one of controversial companies (Vedanta) seeking relief in the same matter, as amicus curie. This sparked a huge controversy and uproar in the country. It is to be noted that Justice Bobde was appointed to Bombay High Court as a judge in the year 2000 when Mr. Harish Salve was Solicitor General of India. It is not hidden from anyone that what kind of role a Solicitor General may play in appointment of judges through backdoor negotiations with collegiums. It may be inferred that Mr. Salve could have played some role in the initial appointment of Justice Bobde to Bombay High Court. Therefore, appointing him as amicus curiae or permitting him to appear before a bench led by him was in direct conflict with judicial conduct which is also against the United Nations’ Bangalore principles of Judicial Conduct. It is also to be noted that during the pandemic a Bench led by Justice Bobde heard the matter between Tata and Shapoorji Pallonji (Mr. Cyrus Mistry) for several days. The Supreme Court set aside the Company Law Tribunal’s order which had restored the position of Mr. Cyrus Mistry giving much-needed victory to Tata. In that matter, Tata was represented by Mr. Harish Salve against Mr. Cyrus Mistry. We make it clear that we do not have any comment to offer on the merits and outcome of the case in that matter and the reference to it has been made just to prove the priorities of Justice Bobde during the pandemic.

On the collegium side, the collegium led by Justice Bobde did not recommend any name for appointment of Judge to the Supreme Court during his tenure of more than 17 months. During his tenure, the Collegium did not clear many recommendations made by High Court collegiums for appointment of Judges to High Court until the fag end of his career. This has led to five vacancies in Supreme Court and several vacancies in the High Courts. It is to be remembered that the Parliament had increased the strength of judges from 1 + 30 = 31 to 1+ 33 = 34 in Supreme Court at the request of the collegium.

Justice, Spirituality and Constitutional Principles

Lastly, in January 2020, Justice Bobde had granted bail to 14 convicts in Godhra riots case and one of the bail conditions was that the convicts should carry out ‘spiritual and social work during bail’. This was a serious abridgement of constitutional principles. In our opinion, he was not fit to hold the office of a Constitutional Court.

Advocate Nitin Meshram
Advocate Rishi Raj Singh

 Nitin Meshram is an advocate in the Supreme Court, Rishi Raj Singh is an advocate in the Delhi High Court. The views expressed in the article are personal.

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