Supreme Court During CJI Bobde: Judicial Appointments, Pendency & the Pandemic

CJI SA Bobde will finish his 18-month term as the 47th Chief Justice of India tomorrow on 23rd April 2021. Appointed as the Chief Justice in November 2019, the majority of CJI Bobde’s tenure (65%) as the Chief Justice has been during the COVID pandemic. In this post, we look at J. Bobde’s Chief Justiceship through judicial appointments, pendency, and the Court during the pandemic.

243 High Court Judges Recommended; None to the Supreme Court

The Chief Justice is the convenor of the collegium. This includes the Chief Justice and the 4 most senior judges of the Supreme Court. They recommend the appointment of judges to the Supreme Court. CJI Bobde is the first Chief Justice since CJI Dattu (2014-15) to leave office without any recommendations or appointments to the Supreme Court during his term. Reportedly, this was due to a deadlock in the collegium. The issue was the elevation of Justice Kureshi to the Supreme Court. After CJI Bobde’s retirement, there will be 6 vacancies on the bench.

Appointments to the High Court are made by a smaller collegium. It consists of the Chief Justice and the 2 most senior judges. They take decisions on the recommendation of High Court collegiums. 70 resolutions have been passed during Bobde’s tenure to recommend 243 appointments for the various High Courts. 54 were to the Allahabad High Court. None were directly recommended to the Telangana High Court or Meghalaya High Court. On 20 April, CJI Bobde’s bench issued an order, allowing High Courts to appoint upto 5 ‘ad-hoc’ judges to address pendency. On the same day, his bench also issued an order providing a timeline to appoint judges after recommendation.

As of 1st April 2021, there are 411 vacancies in the High Courts (permanent and additional judges). One recommendation has led to a ‘stand-off’ with the executive. In 2017, Saurabh Kirpal was recommended as a judge of the Delhi High Court. The collegium has deferred a decision on reiterating this recommendation four times. Recently, the Ministry of Law replied to CJI Bobde’s letter, confirming their concerns with this recommendation.

CJI Dipak Misra began to publish the resolutions of the collegium, with reasons about their recommendations in October 2017. From October 2018 to November 2019, CJI Gogoi’s collegium gradually reduced the length of the reasoning contained in the published decisions. CJI SA Bobde’s collegium has similarly continued to publish only the names that are recommended and the Court and office they should be appointed to, without further substantiation.

Pendency increased by 14%

CJI Bobde’s term saw consistently increasing pendency of matters from July 2020 onwards, around midway into his term. He took over with around 59.5 thousand pending matters. During the first part of his term, pendency initially increased, especially in February. However, as Courts went online with the onset of COVID-19 restrictions in March, the institution of matters reduced, and cases were disposed of.

After the summer vacation, the Court reopened in July. The pendency of matters increased after this at an unprecedentedly high rate of around 1.27% per month. The restricted operation of the Court due to the pandemic is likely to have contributed to this increase. At the time of his retirement, the pending matters stand close to 68 thousand with a 14% increase.

New Technology for Access of Justice: SCI-Interact, SUVAS and SUPACE launched

One of the reasons for the increase in cases beyond July 2020 is the introduction of e-filing. In May 2020, it became possible to file applications completely online. This was an initiative of the e-Committee of the Supreme Court which has advanced to planning its third phase of digitisation under CJI Bobde and the Chairman of the committee, J. DY Chandrachud. They also introduced SCI-Interact to make the Court paperless.

Shortly after taking over, CJI Bodbe also announced Supreme Court Vidhik Anuvaad Software (SUVAS). This will use artificial intelligence to assist in translating daily orders and judgments. It will aid access to justice by providing translations in nine vernacular languages.

Prior to his appointment as CJI, Bobde was the chairman of the Artificial Intelligence Committee of the Court. This month, he launched the SUPACE portal developed under the guidance of the Committee. SUPACE (Supreme Court Portal for Assistance in Court’s Efficiency) utilises artificial intelligence to conduct research. It provides judges relevant facts and other information necessary for the case. It is currently in operation on an experimental basis.

The ‘COVID CJI’

Even prior to the national lockdown, Courts began functioning at a reduced capacity from 16 March 2020. The pandemic placed the Court in this unprecedented position. The Chief Justice, as the head of Supreme Court, led the efforts to draft safe and fair procedures in response to the pandemic. During the first lockdown period, only ‘extremely urgent cases’ were heard through video conferencing.

From 18 April 2020 onwards, the Court gradually expanded its functioning. On 30 August 2020, the Court began to allow limited physical hearings. The Court opened for hybrid hearings from 15 March 2021 and issued Standard Operating Procedures for the same. However, the recent surge in the pandemic has put pressure on the Court’s functioning again. Recently, 50% of the staff had tested positive.

Notably, on 11 May 2020 the Supreme Court Rules, 2013 was amended to allow one-judge benches for the first time in the history of the Court. Prior to the amendment, the Court typically sat in benches of two or three judges.

Contempt or Criticism?: Tweets Against the CJI

In June 2020, Prashant Bhushan criticised the last 4 Chief Justices including CJI Bobde for the ‘destruction’ of democracy. He also tweeted a picture of Bobde, criticising him for riding a bike without a mask. At the time, the Supreme Court was working at limited capacity. These tweets led to a bench led by Justice Arun Mishra taking a up contempt of court proceedings. The offence: ‘scandalising the court’. He was charged a ₹1 fine in September. The proceedings triggered public debate around the relevance of criminal contempt and its impact on free speech.

CJI Bobde Outside the Court Room

In February 2020, CJI Bobde spoke at the International Judicial Conference 2020 in India. The conference brought together various members of the legal profession, especially judges, across the world. CJI Bobde also occupied roles as Chancellor, Visitor and other honorary positions at various NLUs.

He has spoken at various fora, indicating his vision for the future of the judiciary. At MNLU, Nagpur, he recently said the time had come for a woman CJI. He has also spoken about the importance of utilising technology to ensure access to justice.

We have looked at his term through numbers here. And his key judgments here.