We failed as a collegium in appointing women judges to SC: CJI Bobde

Nagpur: The 47th Chief Justice of India Sharad Bobde superannuated on Friday after holding the country’s topmost judicial office for 17 months. CJI Bobde presided over a number of landmark cases and addressed issues impacting the masses including the historic Ram Janmabhoomi-Babri Masjid, allowing access to basic services and government subsidies for citizens without an Aadhaar card, streamlining appointment of HC judges, marital rape, prohibiting firecrackers’ sale in Delhi due to pollution, banning a religious book and allowing retired HC judges to be reappointed to reduce pendency, among others. He also introduced a number of changes in the judiciary, like use of artificial intelligence (AI), virtual hearing during Covid-induced lockdown last year that proved to be a game changer and allowed the judiciary to continue functioning across the nation. In another landmark observation, CJI Bobde had said that freedom of speech and expression is one of the most abused rights in recent times.
In an exclusive interview with TOI, he spoke at length on various issues, cases he handled and efforts he made to improve the dispensation of justice. Excerpts:
Q. What changes have you brought to the judiciary in your tenure?
A. The introduction of Artificial Intelligence programme SUPACE, shifting the court proceedings to virtual hearings and the introduction of SUVAS app that can be used in the translation of Supreme Court judgments into nine vernacular languages. I also laid a lot of emphasis on minimizing the use of paper in order to make the court’s functioning more environmentally conscious.
Q. Which was/were the most intriguing case/cases you came across?
A. Many cases have been intriguing, you can’t go by what is reported and well known. All the cases that we hear are important regardless of the fame attached to a case.
Q. You introduced the concept of AI in the judiciary. How far has it been successful?
A. The use of artificial intelligence is at a nascent stage and it hasn’t been used enough to call it successful or unsuccessful.
Q. You recently observed that a woman should ascend to the post of CJI. What was the thought behind that? You had also said about efforts to appoint more women judges in SC.
A. The question arose when an applicant filed a petition praying for more women judges in the apex court. We believe it’s time that not only more woman judges are appointed, but also for a woman Chief Justice of India. We have also held collegium meetings in which names of women were considered as possible candidates for the SC, but those didn’t result in any appointment. We failed as a collegium on this aspect.
Q. How to bring in more women judges? What are the incentives for them?
A. The same incentives that are available to men are sufficient for women. The solution is more appointments in higher posts including chief justices of state high courts and as the CJI.
Q. When taking over as CJI, you had said your priority would be to reduce pendency of cases and streamlining the justice delivery system. How far do you think you have been successful?
A. The listing and rate of disposal of cases dropped so low due to the Covid pandemic last year that it wasn’t possible to do that. We had asked the bar for consent for physical hearings and only a few members consented to it.
Q. You introduced hearings through video conferencing during the pandemic, which revolutionized the judicial system. You think it’s going to be a permanent feature in future?
A. Virtual hearings have some drawbacks like connectivity or feedback or sound which sometimes makes the hearing difficult. But there is no reason why these defects can’t be rectified over a period of time. I think the advantages far outweigh the drawbacks. For instance, a litigant from any part of the country, say Mumbai or Tamil Nadu, can be heard through an online proceeding in the Supreme Court at Delhi via virtual hearings. This gives an opportunity to an advocate to argue the case before the top court which would not have been possible otherwise. Similarly advocates in Delhi can appear virtually before any court in the country. Certainly, as a matter of law, every lawyer duly enrolled with the Bar Council of India (BCI) and capable of arguing a case is entitled to address any court. Therefore, I think and hope it’s likely to stay.
Q. Physical filing of petitions has become impossible in current times, what is the progress in allowing e-filing in the Supreme Court?
A. E-filing makes it easier to file a matter in the SC from just about anywhere. It has also helped in significantly reducing the use of paper in courts. Its multiprong approach and advantages can also be linked to artificial intelligence for making the entire process much easier and faster than the physical filings.
Q. Do you think collegium’s decisions on judges’ appointment should be detailed ones and not mere recommendations?
A. I don’t think so. As a lot of opinions about a candidate would otherwise find their way into the decision and might unnecessarily mar his/her reputation, as has happened in some cases in the past.
Q. Don’t you think collegium should divulge details about transfer of judges?
A. No, I don’t think so.
Q. Please elaborate on steps taken by you to fill up vacancies in the high courts in your tenure.
A. In my tenure 111 judges were appointed to various HCs. Also, we have recently passed two very important judgments that address the way the vacancy in the HCs can be filled in an effective and expeditious manner. We issued guidelines for the invocation of Article 224A for appointment of retired (HC) judges to the high courts, in the case Lok Prahari versus Union of India, to reduce the pendency of cases.
Q. What’s your say on criticism of judges and judgments on social media?
A. Social media should have the same standards as the print media. They can’t be making derogatory remarks or statements aimed at maligning the reputation of judges. One change I would like to see is that, off the cuff answers, exploratory remarks made by judges about the case should not be reported as views of the judge. In the judicial process, the judge and the advocate, both say things at times and with a view to explore the truth. These should not be reported and made much of. In other words, discussions should not be reported as decisions.
Q. Do you think public perception of the judiciary needs to be improved?
A. I think it’s an institution manned by humans and so, all aspects from excellence to the limitations and possible inadequacies in a human being would show up in the system. I think it would go a long way if people understood this. The court is greater than any individual judge or lawyer. CJI’s office is an institution and its sanctity must be preserved.
Q. Should privacy of judges take precedence over transparency?
A. The functioning of the judiciary is transparent and not opaque. Certainly, judges are entitled to privacy in their personal lives as much as any person.
Q. You once said the Supreme Court would have a five-judge permanent bench to deal with the important issues like Sabarimala. Have any efforts been made in that direction?
A. The Sabarimala case itself could not be heard due to the pandemic. However, there have been five-judge benches to hear other important matters such as the recently constituted constitutional bench that heard the Maratha reservation case.
Q. What’s your take on Ayodhya verdict? You once remarked it was historic? Do you think it was the biggest case handled by the bench, including you?
A. Possibly. It was the first time that the Constitution bench sat for five straight days in a week to hear the matter. The hearing lasted 40 days and more than a few thousand documents were part of the record. These documents had to be translated into English from Urdu, Persian and Sanskrit.
Q. There are speculations that the executive is indirectly trying to influence and control judges’ appointments by delaying or sitting on proposals...
A. If that’s how one wants to interpret the consultative process.
Q. You once referred about too much freedom of speech for some and very little for others and that freedom of speech and expression is one of the most abused rights in recent times.
A. Isn’t it true? The freedom of speech and expression is most abused right in recent times.
Q. What’s your take on PILs? Those are always under scanner for being frivolous or being misused for blackmailing or targeting someone?
A. There can be a gross abuse of this kind of litigation, like of any other kind, may be more so because the rules of locus standi (Right to appear in the court) are more relaxed.
Q. Have you been able to narrow the Centre-SC divide or is the chasm widening?
A. It’s not a divide. They operate in different spheres.
Q. You are a big supporter of mediation and proposed to have a mediation bar in all courts. Any progress on it?
A. I am awaiting the passage of a law that deals with pre-litigation mediation and makes an agreement arrived at in the course of mediation executable as a decree. Without this enforceability, mediation doesn’t have much value. Once parties think that mediation is more effective and the rule of champerty is relaxed, then it may be more attractive to many more lawyers.
Q. How far has your dream project of setting up the National Judicial Academy (NJA) on the lines of NDA progressed?
A. It was proposed at Maharashtra National Law University (MNLU) in Nagpur, but it hasn’t progressed.
Q. How will you explain the contribution of Nagpur, where you were born and brought up and also started practice at the same place?
A. Nagpur has produced legal minds second to none in the country. Unfortunately, its image receded after it ceased to have the Nagpur High Court which shifted to Jabalpur. It still has managed to produce fine lawyers and judges of repute, including a former CJI even though he was elevated from Jabalpur. There have been several SC judges of great eminence, though I am still waiting for an attorney general to be appointed from the city.
Q. After being in country's topmost judicial post, what’s your next move?
A. After retirement, I will be moving to my hometown in Nagpur.