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Had there not been an ‘inexplicable delay’ in elevating him to the Supreme Court in 2010-11, point out some of his contemporaries, he could have become the chief justice of India. Justice Jasti Chelameswar, who rocked the judiciary by boycotting the meeting of the Supreme Court collegium on September 1, will retire in June 2018 as one of the seniormost judges, but not as the chief justice.
Justice Chelameswar became a member of the SC collegium barely a month ago. After the retirement of Justice Ibrahim Kalifulla in July, he became the fifth seniormost judge in the Supreme Court. But invited to attend a collegium meeting, he shot off a three-page letter to Chief Justice T.S. Thakur explaining why he would not be part of a “non-transparent” system. He, however, offered to give his comments in writing on files sent to him. Either minutes of the meetings of the collegium, he suggested, be kept and circulated or the files be circulated to the judges in their chamber to put an end to the ‘oral’ tradition and the pretence of unanimity. His letter was also a powerful and embarrassing expression of dissent against the collegium system.
A physics graduate from Loyola College, Madras, who went on to study law and worked as a government pleader, Justice Chelameswar’s stand would not have come as a surprise. His, after all, was the lone dissenting voice last October when the SC struck down the National Judicial Appointments Commission Act as unconstitutional. In his dissenting note, he had pointed out that the collegium had earlier rejected recommendations made by the relevant high court collegium but later reconsidered some of those names. The reasons were kept out of the public domain and only those who rose to be CJIs could see those files.
Justice Chelameswar’s dissenting note said the SC collegium first rejected and later reconsidered the relevant HC collegium’s recommendations.
The unprecedented defiance by a senior judge has received both bouquets and brickbats. “He is a national hero who has called a spade a spade,” says Justice Manmohan Singh Liberhan, who retired as chief justice of the Andhra Pradesh HC. Former CJI R.M. Lodha has also come out in support, although with a note of caution. Another former CJI suggests the collegium could start to make the documents public a few years after the appointment. “Past decisions will have a bearing on future appointments and you must make a start somewhere,” he says.
His detractors, however, say Justice Chelameswar’s opinion happens to coincide with that of the government, which, many argue, wants to have the final say in judicial appointments. But the judge has gone on record to clarify that he is not batting for the executive and that he will not seek any post-retirement benefits or sinecure.
A senior advocate at the SC tells Outlook, “You have to give the benefit of doubt to the head of the institution. It is unfair to question his integrity. Honesty, transparency and integrity are fair demands, but the honest are also targeted. Why will anyone become a judge if he has to answer to the social media?”
Justice Chelameswar, though, is known to take unconventional stands. A website reported that he had dissented in four other constitutional judgements. These included the Mohammed Arif case, where death row convicts had pleaded that when the SC rejects their appeals, the subsequent review petitions should be heard in open court. As per the SC rules, all review petitions are “heard through circulation” in judges’ chambers and no oral arguments are made. The constitutional bench agreed with the petitioners, but not Justice Chelameswar.
More controversially, the judge had held that arbitrariness was not a valid ground to strike down a law. The legislation in question was a Haryana election law that debarred people from contesting local body elections if they did not meet certain criteria. This was extended to people who defaulted on cooperative society or bank loans and electricity bills, lacked stipulated educational qualifications, had been charged with (not convicted of) crimes carrying 10-year sentences, or did not have toilets at home. The judge was unmoved by the argument that the disqualifications did not apply to people contesting for state assemblies and Parliament and were, therefore, discriminatory.
The Supreme Court collegium’s recommendations for appointment of Supreme Court judges are required to be unanimous. With Justice Chelameswar unlikely to give in unless his demands are met, the Supreme Court is left with limited options. He may just have triggered the beginning of a judicial transformation.