Importance of being No. 2: Sharad Bobde to sail an uncharted course

The second seniormost judge who heads the panel to probe sexual harassment charges against the Chief Justice will bear responsibility for setting the standards and procedures in this unique case

In a speech last year, Supreme Court Justice Sharad Arvind Bobde recalled the words of Gandhari in Mahabharata: “May the righteous one win." This, the judge said, was one of the earliest statements of the Rule of Law. It is also the motto of the Supreme Court.
 
Bobde, 63, who has been chosen by the full court of 25 judges to deal with the sexual harassment complaint against Chief Justice Ranjan Gogoi, would need divine help to create harmony out of the chaos that has erupted last week. The first salvo has already been fired by women’s groups. The procedure followed by the Chief Justice and Bobde has been criticised on several grounds.

 
While judges value precedents and use them as guideposts, there is no precedent to follow, in this country or any democratic state, in the current situation. When there is no precedent, judges have to create one. And, this burdensome duty has fallen on Bobde, No.2 in the judicial hierarchy. The full court has chosen him to head a three-judge panel to sail an uncharted course.
 

Allegations of sexual harassment by judges are not new. Two complaints surfaced twice in recent years. The chief justices laid down some fuzzy procedures and as the judges retired, those cases vanished from public gaze.

 
But this time, the target is the chief justice himself and there is no one above him in the Constitution or rulebooks to handle such a matter. Therefore, the Bobde panel is to devise a transparent procedure to deal with the situation. He has moved fast, considering that Gogoi will retire on November 18, and Bobde himself will take his place till April 2021. There is a two-month vacation, meanwhile. The woman who complained against Gogoi and the Secretary General of the court have been summoned on Friday.
 
Meanwhile, one of the three judges on the panel, Justice N V Ramana, recused himself from the case on Thursday. Justice Indira Banerjee is the other judge on the Bench.

Critics say the Sexual Harassment of Women at Workplace Act should apply in this case. They also allege that the woman was not heard before the chief justice made off-the-cuff remarks like bigger forces are trying to destabilise judiciary. The fact that the judge continues to function while the probe is on is a ticklish issue.
 
Therefore, Bobde panel’s first task would be to reassure its critics that it is following an unimpeachable procedure. Precedents in impeachment moves against judges are not applicable in this case. There is a procedure laid down in the Constitution for removing a judge who is accused of “proven misbehaviour”. In some cases, the chief justices had taken away work from judges under a cloud or the judges quit on their own. But when the head of the judiciary himself is under attack, there are no guiding lights. Moreover, unlike financial corruption, which can be pried open with evidence on record, inquisitors of sexual harassment have to grope in the dark for hard evidence.  That is the challenge facing the Bobde panel.

 
The choice of Bobde, 63, is well merited. Son of legal luminary Arvind Bobde, he has practised in the Bombay High Court and the Supreme Court for over two decades. He was appointed Additional Judge of the Bombay High Court in March 2000. Twelve years later, he was appointed Chief Justice of the Madhya Pradesh High Court. He was elevated to the Supreme Court in April 2013. When he becomes the Chief Justice later this year, he will have a term of nearly two years.
 
On the Bench, he often sits on the right side of Chief Justice Gogoi. He talks little, but intervenes forcefully when he has a question to ask. He shows no sign that he was once a sportsman, representing his law college team, which won the inter-collegiate championship in Nagpur.

 
Though he is not a prolific writer of judgments, Bobde has been part of benches that delivered important decisions. As a member of the nine-judge constitution Bench, he wrote a separate judgment asserting that right to privacy is “inextricably bound up with all exercises of human liberty”.
 
In the Aadhaar order, his Bench ruled that no citizen can be deprived of basic services and government subsidies for not having the unique identity card. Recently, he has become the green judge who deals with environment issues. His Bench passed the order banning the sale and stocking of toxic firecrackers as well as regulating the issue of licences.

 
Last week, he, along with Justice SA Nazeer, decided to examine the right of Muslim women to pray inside mosques. Bobde was not convinced about the right because a writ lies only against the state and not against places of worship. “We are not convinced with your argument,” he told the Muslim couple, and added: “We are only hearing you because of the Sabarimala judgment.” It showed how open his mind is even when a judgment of the court is suspected of transgressing judicial boundaries.