Above: Justice Bobde is uniquely qualified to take up the many challenges facing the apex court/Photo: Anil Shakya

As the future head of the judicial family, the CJI-designate Justice SA Bobde has shown his adroitness in smoothening out schisms within the Court and articulating a unique view on the right to privacy

By Venkatasubramanian

Justice Sharad Arvind Bobde will be the 47th chief justice of India (CJI) with his elevation almost certain following outgoing CJI Ranjan Gogoi’s recommendation to the government naming him as his successor. Bobde, who is expected to be sworn in on November 18 following Gogoi’s retirement, will be at the helm till April 23, 2021, when he completes 65 years, the age of superannuation for SC judges.

The office of the CJI epitomises the institution of the judiciary itself, although he himself is only first among equals in the Supreme Court. The CJI, as the administrative head of the Supreme Court, provides leadership to the entire higher judiciary by seeking to ensure discipline and accountability of the judges. He exercises this responsibility formally through the collegium by making recommendations to the centre to appoint and transfer judges of the higher judiciary and is expected to protect the institutional interests vis-à-vis pressures from the executive.

As the head of the judicial family, the CJI is also expected to perform an informal role in redressing complaints against individual judges by setting up in-house inquiry committees to probe them. The CJI also exercises his powers through high court chief justices to withdraw work from those judges who defy his advice to quit if the committee finds substance in the complaints against them. The CJI also has the power to permit investigative agencies such as the police and the CBI to probe allegations against judges and register FIRs if necessary.

But it is not because of these reasons alone that Bobde’s tenure is anticipated with huge expectations. His turn to lead the judiciary comes at a crucial time when the Supreme Court completes 70 years of its existence and with its image far different from what it was in its early years. Today, the Supreme Court comprises 34 judges, including the CJI, and its sheer size poses a challenge in ensuring its coherence.

With the demand to set up regional benches of the Supreme Court coming from Vice-president Venkaiah Naidu himself, the stakes for safeguarding the image of the Court as the only institution where every citizen can have faith in protecting and promoting the ideals of the Constitution are very high. It is with regard to this that many consider Bobde uniquely qualified to take up this challenge, although the principle of seniority is cast in stone.

In the history of the Supreme Court, January 12, 2018 signifies a sad chapter because of the press conference held then by four senior puisne judges of the Supreme Court against then CJI Dipak Misra’s style of functioning as the administrative head of the Court. Bobde’s role in defusing tensions and restoring normalcy within the Court in the following days may remain hidden from public knowledge until one of those protagonists writes their memoirs to recall those events which tested the Court’s resilience. According to one perceptive journalist, Bobde brokered peace between Misra on the one side and the four most senior judges—Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph—on the other.

Bobde was one of the two judges of the Supreme Court who had rushed within hours of the press conference to the residence of Chelameswar where the presser was held. The other was Justice L Nageswara Rao. Bobde, like the other judges of the Supreme Court, was completely taken by surprise by the presser, which was being shown live on television. He, therefore, sought to understand his colleagues’ concerns and resolve them in the following days.

As an immediate step, he advised them to avoid the public fora to discuss internal issues of the Court and use internal mechanisms instead. Bobde was then sixth in seniority after the CJI and, being in line to become the CJI in future, he was uniquely placed to act as a bridge between Misra and his critics within the Court.

The uploading of the collegium’s resolutions and the judges’ roster of work for fresh cases on the Supreme Court’s website after this were considered Misra’s overtures to regain the trust of his estranged colleagues. However, not many knew or spoke about Bobde’s role behind the scenes in this reconciliation. Tensions were, indeed, simmering in the Court in the aftermath of the press conference, but things were more or less under control as the Court continued to present a picture of a functioning court despite internal schisms.

Bobde is the son of Arvind Bobde, former advocate general of Maharashtra. He practised in the Bombay High Court and Supreme Court for over 21 years. He was appointed additional judge to the Bombay High Court on March 29, 2000. On October 16, 2012, he was elevated as the chief justice of the Madhya Pradesh High Court. On April 12, 2013, he joined the Supreme Court.

Among his notable judgments, the one declaring the right to privacy as a fundamental right stands out. Delivering a concurring judgment as part of the nine-judge bench in Justice K.S. Puttaswamy v Union of India on August 24, 2017, Bobde agreed with the other judges on the bench, but sought to put forward his own analysis. He traced the natural right of privacy to common law as early as 1604. He explained how Chapter 17 of the Indian Penal Code, 1860, treats trespass against property of an individual as a criminal offence, thus embodying the right to privacy.

Bobde also articulated in his judgment why individuals would choose to retain their privacy even in public.  Privacy, he said, must also mean the effective guarantee of a zone of internal freedom in which to think. “The disconcerting effect of having another peer over one’s shoulder while reading or writing explains why individuals would choose to retain their privacy even in public,” he wrote. It is important to be able to keep one’s work without publishing it in a condition which may be described as private, he reasoned. The vigour and vitality of the various expressive freedoms guaranteed by the Constitution depends on the existence of the corresponding guarantee of cognitive freedom, he added. Privacy is, therefore, necessary both in its mental and physical aspects as an enabler of guaranteed freedoms, he explained.

Freedom of speech and expression, to illustrate, is always dependent on the capacity to think, read and write in private and is often exercised in a state of privacy with the exclusion of those not intended to be spoken to or communicated with, he suggested. It is not possible to conceive of an individual being able to practise a profession or carry on trade, business or occupation without the right to privacy in practical terms and without the right and power to keep others away from his work, he said.

To Bobde, the right to privacy is embodied in our constitutional provisions in several ways.
Non-interference from the State is required by Article 26 to enable every religious denomination to maintain institutions for religious and charitable purposes. Article 28(3) recognises the right of a student attending an educational institution recognised by the State to be left alone and not compelled to take part in any religious instruction unless his guardian has consented to it. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us, he envisaged.

Agreeing that the right to privacy is not an absolute right and can be reasonably restricted given a sufficiently compelling State interest, he insisted that such restrictions must satisfy the tests applicable to whichever freedoms guaranteed by the Constitution they affect. Thus in 2013, as part of a two-judge bench, he declared that no Indian citizen could be deprived of basic services and government subsidies for the lack of an Aadhaar card.

Bobde also headed the in-house committee comprising himself and Justices Indira Banerjee and Indu Malhotra which gave a clean chit to Gogoi in the sexual harassment allegations levelled against him by a former Court employee. This was a trying moment as he had to maintain public confidence in the robustness of the institution to inquire into allegations against its own head.

He also suffered from a probable conflict of interest as his own elevation as CJI had to be cleared by Gogoi, though it was a mere formality.

The in-house committee’s reluctance to make its report public, therefore, will always be cited by Bobde’s critics against him.