The Legacy of A Contrarian In The Court- 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 HR Khanna in a heartfelt farewell speech on his last working day.NJAC DissentThe most notable verdict of Justice Chelameswar is his lone dissent in the NJAC judgment. 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 the 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 the 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 view that 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 LibertiesJustice 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 RF 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...

The Legacy of A Contrarian In The Court- Reminiscing Justice Jasti Chelameswar on his retirement

Manu Sebastian

Tags