‘We tried to set things right in SC’
SPEAKING OUT Says the ‘extraordinary’ Jan 12 presser, where four judges came together to criticise the Chief Justice, was to inform the nation about what was wrong in the apex court
IMPORTANT CASES OF HIS TENURE
NJAC case: Justice Chelameswar expressed strong views on “a lack of transparency” in the judiciary in a strongly-wordeddissentnotewhile disagreeing with four fellow judges who struck down the NDA government’s National Judicial Appointments Commission (NJAC) Act Shreya Singhal/66A case: A bench of Justices Chelameswar and R Nariman struck down provision 66A of the IT Act, which had been used to arrest people for their online posts. The section “arbitrarily, scrutiny. In a democracy, no public office holder is beyond scrutiny.
The Supreme Court is generally criticised for adopting a nontransparent procedure in the appointment of judges. What is your take on the issue?
We are not adopting a fair, rational and transparent procedure in appointing judges. In the context of the appointment of Supreme Court/high court judges, Parliament made an attempt to change it; the attempt failed. The point is that the old system is the law now, but even that system is required to function in the interest of the people of this country and anything that is not rational and transparent is not in the interest of the people of this country. When you choose a person as a judge, you need to see a certain procedure has to be followed. Is the selection process as rational as it should be? Are we adopting a procedure that is transparent? excessively and disproportionately invades the right of free speech”, the bench said
Aadhaar case: In 2015, Justice Chelameswar was a part of the three-judge bench, which said that no Indian can be denied government subsidies and other services just because they do not have an Aadhaar number/card
Right to privacy: Justice Chelameswar was a part of the nine-judge bench that declared right to privacy a fundamental right in August 2017.
The government of India first sat on the recommendation of elevation of Justice KM Joseph as a judge of the Supreme Court and then months later sent back the file asking the collegium to reconsider the appointment. Do you think that the government is sabotaging the appointment?
I don’t want to comment on the appointment of Justice Joseph as the matter is under consideration, my opinion on the matter is on record. But on the issue of the government sitting on recommendations of the collegium, every government has done it. These things have always happened.
How should decisionmaking happen in the Supreme Court?
The idea of collegium, a multimember body, was mooted 20 years back. The idea of consultative process is inherent and that is democracy. Why not have a Prime Minister alone? Why (is there) a Cabinet? Because the constitution framers in their wisdom believed that in a democratic system, plurality of opinions and interaction of minds will yield greater wisdom. Why is the same principle not incorporated in the context of the consultation of the CJI? In fact, it was Justice (PN) Bhagwati who wrote for the first time, saying that there is no guarantee that the Chief Justice of India will always protect the institution. If I say this, immediately somebody will interpret it as a personal feud between me and Justice (Dipak) Misra (the current Chief Justice). Bhagwati wrote this even before I and Justice Misra were born in the judiciary. I wrote to the former Chief Justice of India (Justice Thakur) expressing my dissent at the non–transparent manner of the functioning of the collegium, but not much has changed since then.
Should the outgoing CJI have a singular say in the appointment of a new CJI or should there be some check and balance on him? CONTROVERSIES
Jan 12, 2018, press conference: With three other judges, he criticised the way cases are allocated in SC Prasad Medical College case: A bench headed by him referred a case of alleged corruption against judges to a bench of five judges
Collegium boycott: In Sept 2016, Chelameswar wrote to then CJI TS Thakur, refusing to attend collegium meets over a “lack of transparency “Refusal: Says no to a farewell that is traditionally given to the retiring judge of the Supreme Court.
The outgoing CJI should have the power to recommend the name of the new chief justice, but exercise the power bona fide — he/she has to give reasons. The tradition is that the seniormost is recommended as the new CJI, but for any reason, if the CJI departs from the tradition, he/she should have the freedom to do so provided he/ she records his/her reasons (saying), “For this reason I consider the seniormost judge as unfit to become the CJI.” There is nothing wrong in the CJI recommending the name, somebody has to do it.
A few years back, a former chief justice said that judges must be shielded from the lure of postretirement government jobs. Do you think that there should be some coolingoff period for judges before they accept a postretirement job?
The accusation that governments dangle post-retirement jobs in tribunals and other offices to judges and subtly manoeuvre the courts has always been made and it needs to be guarded against. It is for the public to decide if a particular appointment is made on genuine assessment of the person’s suitability or for certain extraneous reasons of the government. I can talk for myself that I have decided not take any postretirement job.
Please share your views on the charges of nepotism in the judiciary, in the sense that there is a general perception that sons and daughters or relatives of judges stand a better chance of becoming judges.
In some cases, people who are related to former judges reach the high court or the Supreme Court, that by itself does not indicate anything is wrong. If a judge’s son or daughter is suitable and otherwise competent, why should he/she not become a judge? Should he/she be barred merely because his/her father was a judge ? The question is, “Is the person being made a judge because of his/her abilities or for being related to a judge?” There have been cases both ways. In some case, it’s only because of the relationship that it happened and in more cases these are outstanding people (who are being appointed).
Is it okay to have judges in the Supreme Court who have a political ideology ?
I would prefer a judge with some political ideology to a judge who keeps changing his ideology with time. At least you know what the ideology of the judge is.