Reminiscing
Justice Jasti Chelameswar on his retirement.
“I am something of a
contrarian, I suppose. I feel less comfortable when everybody agrees with me. I
say, 'I better re-examine my position!' I probably believe that the worst
opinions in my court have been unanimous. Because there's nobody on the other side
pointing out all the flaws”- so said
the maverick judge of US Supreme Court Justice Anton Scalia. In the
Indian context, this description might best suit Justice Jasti Chelameswar, who
had his last working day as a Supreme Court Judge on May 18 ( though his official date of retirement
is June 22, it falls in between the Court’s summer recess).
In the mainstream media
narrative, he is the “dissenting voice of Supreme Court”, “the rebel judge”,
“chief dissenting justice”, “whistleblower” etc. This popular image is possibly
formed by his famous but lone dissent in the historic NJAC judgment, his open
criticism of the manner of the functioning of the collegium system and most
importantly his radical act of leading the judges’ press conference on January 12
regarding the issues in the administration of Supreme Court. This could have been the reason why Advocate Shanti
Bhushan likened him to Justice H. R Khanna in a heartfelt farewell speech on his last working day.
NJAC Dissent
The most notable verdict of
Justice Chelameswar is his lone dissent in the NJAC judgement. While the other
four judges in the Constitution Bench invalidated the Constitutional Amendment
brought to replace the collegium with the National Judicial Appointments
Commission, Justice Chelameswar struck a dissenting note to uphold it. He dissented
from the conventional wisdom that any sort of executive role in judicial
appointment will compromise judicial independence. He held that primacy of the judiciary
over executive in the matter of appointments is not a part of basic feature of
the Constitution. It was also held that to diminish the role of the executive
in judicial selection was not suited for a democratic society. Striking a
discordant note with the widely spun narrative of judiciary being the sole
protector of civil liberties, he observed : To assume or assert that judiciary alone is
concerned with the preservation of liberties and does that job well, is an
assumption that is dogmatic, bereft of evidentiary basis and historically
disproved. The point sought to be highlighted was that judiciary is not the
only constitutional organ which protects liberties of the people, and the
demonization of the executive in the popular imagination was without basis.
The
emphasis of Chelameswar was more on creating a transparent and fair system,
rather than keeping out the executive from the selection process. He termed the
collegium as “euphemism for nepotism”. “We the members of the judiciary exult and
frolic in our emancipation from the other two organs of the State. But have we
developed an alternate constitutional morality to emancipate us from the theory
of checks and balances, robust enough to keep us in control from abusing such
independence?”- he remarked. He also wanted more participation of the
members of the civil society in the selection process. According to him, the
fiascos of collegium appointments would justify the participation of the
members of the civil society in the process to eliminate from the selection
process the maladies involved in the process. This was in contrast to the
majority opinion, mainly expressed through Justice Khehar, which infantilized
the civil society as immature.
Chelameswar’s demand for transparency
in the process found resonance in his action after he became a member of SC
collegium. He refused to attend the collegium’s meetings, as long as its
deliberations were kept under wraps. In a letter to then CJI he wrote : “It
is the law of this land that no meeting can be convened without a proper notice
and an agenda, be it a meeting of a panchayat board or a cooperative society or
a company or other bodies, statutory or constitutional. If you (Justice Khehar)
believed these collegium meetings are beyond all principles of law propounded
by their court, God save the Country. If these discussions across the coffee
table are to be treated by you as meetings of collegium where important
decisions in discharge of the obligations arising from the Constitution are to
be taken, I feel sad for this country. But I am of the hat such a procedure
falls short of the legal requirements of a meeting. I believe collegium
meetings are too solemn events to be conducted so casually.”.
The decision of subsequent CJI
Dipak Misra to publicise the minutes of collegium meeting could be a result of
the relentless protestations of Chelameswar.
Civil Liberties.
Justice Chelameswar was part
of the bench which struck down Section 66A of the IT Act in the historic Shreya
Singhal case. The judgment authored by
his brother judge Justice R.F Nariman termed the provision as creating a
chilling effect on the freedom of speech and expression. One of the first orders in the Aadhaar case
holding that concessions & benefits cannot be denied for not having aadhaar
card was pronounced by a three member bench presided over by Chelameswar.( Justice
K.S Puttuswamy (Retd) v. Union of India (2015) 8 SCC 735). In the privacy case, he observed :- what you eat or wear is nobody ‘s business and
amounts to intrusion into your privacy rights”. He discussed the privacy of ‘repose, sanctuary, and
intimate decision’.
One area which was close to
the heart of Justice Chelameswar was disability rights. While being a judge of
the High Court of Andhra Pradesh, and later the Chief Justice of Gauhati High
Court and Kerala High Court, he has authored several judgements advancing the
causes of persons with disabilities. In Rajeev Kumar Gupta v. Union
of India (2016) 13 SCC 153, the judgment authored by him expanded the scope
of disability rights by holding that persons with disabilities were entitled to
reservation even in posts where recruitment is through promotion.
Prasad Education case and subsequent drama
November 10 will be an
unforgettable day in the Indian judicial history, where an unprecedented
controversy erupted in the Court. On the previous day, a petition seeking Court
monitored investigation into the bribery allegations pertaining to Prasad
Education Trust case was mentioned before the bench headed by him. Since the
bribery allegations were with regard to a case disposed of a bench led by the
CJI, the mentioning was made before the bench headed by Justice Chelameswar,
the second senior judge. Terming the allegations as “grave and serious”, the
matter was referred to be decided by a bench constituted by five senior most
judges excluding the CJI. On November 10, the very next day, this order passed
by the two member bench headed by Justice Chelameswar was annulled by a
hurriedly constituted constitution bench led by CJI, in a raucous hearing
session marred by unprecedented drama.
Many in the legal field feel
that these events acted as a catalyst for the press conference of Justices
Chelameswar, Gogoi, Lokur and Kurian Joseph on January 12. Justice
Chelameswar himself described it as an "extraordinary event". During
the news conference he said "sometimes administration of the Supreme
Court is not in order and many things which are less than desirable have
happened in the last few months." Justice Chelameswar said "we
owe a responsibility to the institution and the nation. Our efforts have failed
in convincing CJI to take steps to protect the institution." “Wise men should not say in future that we sold our
souls." He remarked during the
press meet.
The press conference
highlighted before the general public for the first time the issues regarding
allocation of cases. In
the letter by four judges, it was stated as follows:
There have been
instances where case having far-reaching consequences for the Nation and the
institution had been assigned by the Chief Justice of this Court selectively to
the benches “of their preference” without any rationale basis for such
assignment. This must be guarded against at all costs.
Later in March 2018, he issued
a letter to
the CJI, protesting the manner in which the Central Government was making
interference with the appointment of a judge to Karnataka High Court. He took strong objection to the manner in
which the Central Government issued recommendations to the Karnataka HC, bypassing
SC Collegium. Condemning such practice of the Centre
directly communicating with the High Courts, he asserted that “bonhomie”
between the Judiciary and the Government “sounds the death knell to
Democracy”
Equally noteworthy is his interview given to Karan Thappar during April 2018. Very circumspect so as not to breach limits of propriety, he opened his mind in the interview regarding the pressing issues faced by judiciary. The public conversation between him and Thappar an articulate journalist, well-known for his incisive questions, was highly engaging and delightful.
He held the firm
belief that judges should have strength of character above all other qualities
like learning in law, incisive and alert mind to quickly grasp the
controversy, energy and commitment to resolve the problem etc. His following observations in the NJAC case
are quite relevant :
There are various factors which make a Judge pliable. Some of the
factors are - individual ambition, loyalty - based on political, religious or
sectarian considerations, incompetence and lack of integrity. Any one of the
abovementioned factors is sufficient to make a Judge pliable. A combination of
more than one of them makes a Judge more vulnerable. Combination of
incompetence and ambition is the worst. The only way an ambitious incompetent
person can ascend a high public office is by cringing before men in power. It
is said that men in power promote the least of mankind with a fond hope that
those who lack any accomplishment would be grateful to their benefactor.
History is replete with examples - though proof of the expected loyalty is very
scarce. Usually such men are only loyal to power but not to the benefactor.
These words underline his positive self-image
and sense of self-worth, and also his utter disdain for those who bow before
power for crumbs of benefits.
One thing can be
said about him for certain- that he is not a stickler of the status-quo, and
that he will not shy away from doing the right thing according to him,
regardless of the constraints of convention and judgment of public opinion. His
unconventional methods have earned him bouquets and brickbats, and he seems to
be unmoved by both. Perhaps, he might have imbibed the sense of indifference
and equilibrium advocated by Bhagagavad Gita. This could be the reason
why the former CJI Ventkatachaliah described
him as the sanyasi in the Court. A sanyasi is one who works for
the sublimation of soul detached from worldly rewards. Perhaps, the ex-CJI intended that Chelameswar
was endeavouring for the betterment of justice delivery system, without any
desire for benefits to himself. The
legend of Prometheus, the Greek mythological character who invited the wrath of
gods for giving the fire of enlightenment to humans emerge as a striking
parallel to the course of journey of Justice Jasti Chelameswar.
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