On 23rd April 2021, Justice SA Bobde will retire as the Chief Justice of the Supreme Court of India. During his eight-year tenure at the Supreme Court, he had the opportunity to adjudicate and shape law around personal liberty, religion, gender equality, and electoral processes issues. In this post, we examine a few crucial cases CJI Bobde authored or concurred. We also look at a series of crucial cases CJI Bobde admitted.
Right to Privacy a Right?
In August 2017, the Supreme Court in Justice K. S. Puttaswamy v. Union of India recognised privacy as a fundamental right, In his concurring opinion, Justice Bobde noted that privacy was vital to a person’s liberty, which included privacy of body, or mind. Privacy was the ‘inarticulate major premise’ in Part III of the Constitution of India, 1950, CJI Bobde asserted. This judgment paved the way for a nuanced application of the right to personal liberty and life in the Navtej Johar case that decriminalised homosexuality.
CJI Bobde also led the three-judge bench in Karmanya Singh Sareen v. Union of India. This is an ongoing case that examines if Whatsapp’s privacy protections for Indian users do not meet the standard of the protections offered to European users.
Right to Reside in India not Extended to Refugees
In the Rohingya deportation case, CJI Bobde led a three-judge bench in an interim order located the right against deportation of refugees in the right to reside in India [Article 19 (1) (e)]. Not, as the petitioners had contended under the right to life and personal liberty [Article 21], and the right to equality [Article 14]. As Article 19 (1) (e) can only be claimed by Indian ‘citizens’, the Court reasoned that Rohingya refugees could not claim a right against deportation. As a caveat, the Court urged the Government to follow due process during deportation.
Religious Freedom, Minority Rights and the Uniform Civil Code
One of the most high-profile cases that CJI Bobde had to adjudicate was the Ayodhya Title Dispute case. In this five-judge bench unanimous judgment, the Supreme Court overturned the Allahabad High Court judgement which had divided the land between Babri Masjid and Ram Janmabhoomi. The Supreme Court awarded the title to the deity, Sri Ram Virajman. And provided an alternate land for the construction of Babri Masjid.
CJI Bobde also led the Division bench in Poojaya Sri Jagadguru Maate Mahadevi v. Government of Karnataka, which upheld the ban imposed on a book by Mate Mahadevi. Because the book caused religious outrage among Lord Basavanna’s followers. Justice Bobde held that the Court cannot interfere with the executive decisions of the state government.
CJI Bobde led bench admitted a series of cases that could potentially reshape the right to religious freedom in India. In Ashwini Kumar Upadhyay v. Union of India and Ors the petitioner challenges the constitutionality of Section 2(f) of the National Commission of Minorities Act, 1992. And argues that the Central Government has unchecked power in designating groups with minority status and has not wielded it in a scientific or empirical.
In another Ashwini Kumar Upadhyay v. Union of India and Ors case, the petitioner is challenging the constitutionality of Sections 2,3 and 4 of the Places of Worship Act, 1991. The petitioner argues that these Sections violate secularism and the right to equality. Last month, on 12th March 2021, Justice Bobde admitted the case and issued notice to the State governments.
In Indian Muslim League v. Union of India, the Indian Union Muslim League filed a petition immediately after the Citizenship (Amendment) Act, 2019 (CAA) was passed. The petition challenged the CAA on the grounds that it discriminated against particular religions and violated the fundamental rights of illegal migrants. The case is currently presided over by CJI Bobde. In Citizens for Justice and Peace v. State of U.P. & Ors, the three-judge bench led by CJI Bobde admitted the petition challenging the validity of anti-conversion laws passed in U.P. and Uttarakhand. CJI Bobde issued a notice to the state governments but declined to grant an interim stay order. In the third Ashwini Kumar Upadhyay case, a writ petition seeks the implementation of uniform grounds of divorce, maintenance and alimony. The petition argues for a Uniform Civil Code as the first step towards gender and religion-neutral laws governing the subject. The bench led by CJI Bobde issued a notice to the Central Government with “great caution” as it could affect a series of legislations and personal laws.
Gender Equality v. Religious Freedom
Over 50 review petitions sought for the re-examination of the Sabarimala temple entry judgement that allowed women of ‘menstruating age’ to enter Sabarimala temple. A five-judge bench referred the review to a larger constitutional bench of nine judges. CJI Bobde led the nine-judge bench in identifying constitutional issues on the scope and extent of religious freedom in the Constitution.
In Yasmeen Zuber Ahmad Peerzade & Anr. vs Union of India, CJI Bobde led bench is currently hearing a petition regarding whether prohibiting women from entering Mosques violates the fundamental rights to equality, non-discrimination, freedom of religion, and life and liberty. This case also raises the question of whether fundamental rights can be invoked against Mosques which are non-state actors. The bench led by Justice Bobde issued notice to the State Governments on April 16th 2019. This case also reinvigorated the discussion surrounding the implementation of a Uniform Civil Code to eliminate discrepancies between personal laws.
Even Voters liable for Corrupt Practices; Electoral Bonds not Stayed
In Abhiram Singh v. C.D. Commachen, the Court had to decide if under Section 123(3) of the Representation of the People Act, 1951 ‘corrupt practices’, solely referred to the candidate or included the voters. Section 123 bars the promotion of enmity or hatred on the ground of religion, race, caste, community and language. The majority opinion included CJI Bobde. And ruled that any appeal to the identity of the voter or the candidate, based on religion, caste, language or community, would be illegal under this provision. It included both the voter and the candidate.
In the pending case of Association for Democratic Reforms v. Union of India, CJI Bobde led bench had to examine the validity of the electoral bonds scheme and whether it facilitates anonymous corporate funding to political parties. In an interim order delivered on 26th March 2021, the bench led by CJI Bobde denied the request to stay the next tranche of electoral bonds to be issued before the summer state assembly elections.