Collegium Deadlock & Gender Parity: A Look at CJI Bobde’s Legacy

The tenure of the 47th CJI, SA Bobde, was coloured with controversies, both political and legal.

Chief Justice of India SA Bobde.

(Image: The Quint)

As 23 April 2021 comes to an end, also comes to an end the tenure of the 47th Chief Justice of India, Sharad Arvind Bobde. Similar to his predecessor, the fifteen-month tenure of Justice Bobde was coloured with controversies, primarily political.

It is an undeniable fact that the position of the Chief Justice of India is one of the most observed positions in India, probably as closely observed as that of the Prime Minister. In such a scrutinise(able) position, it is a challenging task of being a CJI, knowing that your every action is being observed meticulously, whether be it sitting on a Harley Davidson in Nagpur or being quoted out of context (‘will you Marry her’ remark) on news channels, the CJI position continues to face the brunt. 

And this surely should not come as a shocker to us, knowing that the people of India bestow much trust in the institution of the judiciary. They see the judiciary with the eyes of hope and assurance that their rights would find reflections in the elegant words of the Supreme Court, that the Supreme Court would be their kryptonite against the onslaught of the Superman(ic) Society. Therefore, gaining infamy is a part and parcel of the herculean task of being a Chief Justice of India.

The Collegium’s Deadlock

CJI Bobde would be the first Chief Justice of India in the history of the Supreme Court who would retire without making a single elevation to the Supreme Court of India, probably a legacy that he would not like to associate himself with. Erstwhile CJI HL Dattu comes closer to the legacy of CJI Bobde, as he only made a single elevation of Justice Amitava Roy in the Supreme Court during his tenure.

Interestingly, in his fifteen-month tenure as CJI, Justice Bobde had held several meets of the Collegium; several names were discussed, yet as the report claims, there was a deadlock on the name of Justice Akil Kureshi, one of the senior judges in the all-India seniority list of Chief Justices of High Courts in India.

Currently serving as the Chief Justice at the Tripura High Court and bound to retire on 6 March 2022. Famous for his judicial integrity and knowledge, Justice Kureshi is one of the aspiring judges in line for elevation to the Supreme Court of India.

It is not for the first time that Justice Kureshi has been part of a debate. Back in 2019, the Collegium had recommended his name for the Chief Justice position of Madhya Pradesh High Court, however, after the Centre’s communication, the Collegium recalled its decision and appointed Justice Kureshi as the Chief Justice of Tripura High Court.

However, this deadlock in the Collegium has undoubtedly turned out to be a talent-killer, knowing that apart from Justice Kureshi, there were other talented Judges of the High Courts who have waited for the last fifteen months to be elevated at the apex court. Interestingly, and factually stated some of them have retired in the tenure of CJI Bobde itself or are bound to retire in coming months, and it includes the name of the Chief Justice of Allahabad High Court Justice Govind Mathur, who recently retired from the position and was termed a great defender of personal liberty and freedom.

Similarly, judges Thottathil B Radhakrishnan (Calcutta High Court), Justice PR Ramachandra Menon (Chhattisgarh High Court), Justice Lingappa Narayana Swamy (Himachal Pradesh High Court), Justice Hima Kohli (Telangana High Court), and Raghvendra Singh Chauhan (Uttarakhand High Court) are bound to retire in 2021.

These meek scenarios also contrive a legal pressure onto the coming Chief Justice of India (Justice NV Ramana), knowing that the Supreme Court bench is already understaffed, with its current strength of 29 against the designated strength of 34 and five more judges to retire this year, it will be a hectic task for the coming CJI to end this drought of human resources. A sort of legacy which preferably many a judge would like to avoid.

On Gender Diversity

Another aspect of Justice Bobde’s tenure, which demands equal attention, is the alertness to the cause of gender diversity; off late, Justice Bobde has been very vocal about the cause of gender diversity in the Supreme Court.

An application filed by the Supreme Court Women lawyer’s Association sought direction from the Supreme Court to consider meritorious women lawyers practising in Supreme Court and the High Court judges’ position in High Court.

Justice Bobde (Justice Sanjay Kishan Kaul was also a part of the bench), replying to the application, remarked, “Why higher judiciary? We think the time has come when a woman should be the Chief Justice of India.” However, in the same stint, Justice Bobde also stated that many women lawyers had refused positions of judgeship citing domestic responsibility; this particular statement by Justice Bobde had drawn criticism from the women in the bar association.

However, acknowledgement of the fact that there is a skewed gender ratio present in the Supreme Court by a retiring CJI probably will help in the cause of gender-parity in the near future. At present, there is only one sitting woman judge in the Supreme Court of India (Justice Indira Banerjee), and a total of only 8 women judges have served in the Supreme Court since 1950.

Pandemic, Controversy & Chief Justiceship

The pandemic certainly had an excruciating impact on civil life, as well as on the Supreme Court of India; it badly impacted the efficiency of the apex court. Thus, it cannot be denied that being a Master of Roster in times of a pandemic was not an easy task. While in 2019, the Supreme Court had adjudged around 1,370 cases, in 2020 that number came down to 697.

However, it had little impact on the efficiency of CJI Bobde, who heard around 57 cases during the pandemic (from 22 March 2020 till 20 April 2021) and about 90+ cases in his whole tenure as the CJI (till 20 April 2021), which is an extraordinary feat for the Master of Roster.

However, the legacy of Justice Bobde would be hued with three instances of judicial decision-making.

• First being the CAA petition; just after the CAA amendment had come into existence in December 2019, there were around 140 petitions filed for challenging its constitutionality; ironically, the matter was heard only thrice in 2020, with the decision still pending.
• Second, being the migrant issue, the lockdown-scare had forced lakhs of Indian migrants to undertake an arduous journey on foot or on bicycles to their native villages. Interestingly, several PILs were filed in Supreme Court asking it to take cognisance of the issue, but the PILs were rejected; it was only after the insurmountable pressure created by the legal fraternity as a whole that the Supreme Court took suo motu cognisance of this matter.
• Thirdly, the issue of the farm laws, unlike any other question of constitutionality of law, where the law is tested on the standards of Constitution, under this case the Supreme Court adopted an unprecedented move of staying the application of laws and appointing a committee to garner views on the law, this indeed raised various constitutional questions.

However, all in all it could be summed up that the tenure of Justice Bobde had its highs and its lows and surely certain factors which could be rectified, yet Justice Bobde surely would be remembered for laying down the path for his future brethren, especially on the issue of gender-parity.

(Ashit Kumar Srivastava is an Assistant Professor of Law at National Law University, Jabalpur, prior to this he has also worked as Assistant Professor of Law at National Law University, Odisha. His main area of research is Constitutional Law, Data Protection Law and South-Asian Constitutionalism.)