“TAKING A STAND AND PUSHING FOR IT IS A PERMISSIBLE DEMOCRATIC RIGHT, ISN’T IT?”
“Do you want me to go to jail?” When JUSTICE JASTI CHELAMESWAR refuses to answer questions on the probe into the mysterious death of special CBI judge B.H. Loya for fear of contempt of court, you hide a smile. When did fear take precedence over forthrightness for a man who has famously led an unprecedented press conference of four sitting judges of the Supreme Court in January this year, to throw tough questions at the institution no one dares question, i.e. the Supreme Court? He justifies his actions with a smile: “I am a commoner now.” After 21 years of wielding the gavel, seven at the Supreme Court, Justice Chelameswar, 65, brought it down for good. Seniormost after the Chief Justice of India, he made the quiet internal procedures of the apex court more dramatic than frontline politics in recent years. Chelameswar walked off into retirement on June 22, leaving behind a cloud of unanswered questions. Excerpts from a conversation with Executive Editor DAMAYANTI DATTA just before he left Delhi:
Q: Are you leaving with regret, in anger or with relief?
A: Neither regrets, nor anger. I have finished my duties and I am walking off. That’s all.
Q: You were the lone dissenting judge in the NJAC (National Judicial Appointments Commission) verdict of 2015. Would you have taken the same stand today?
A: Yes, I’d still support the NJAC, on the very same grounds. It is one thing to say the structure is unconstitutional and another to say the way that it’s being operated is wrong. My complaint was only that the system was not being operated properly.
Q: Your time as a Supreme Court justice has been marked by protests against the functioning of the court. Have they made a difference?
A: I wouldn’t call it protest. I raised some institutional questions. And I do believe raising those questions made some difference to the system.
Q: Never before in our history has dissension within the apex court come out so openly in the public domain as during your tenure. How easy or difficult was it to work, especially after the January press conference?
A: I had no difficulty. I never had any private issues with anybody. I raised certain institutional questions. After that, I sat normally in court and decided cases, with the same degree of efficiency or inefficiency with which I functioned earlier. It did not make any difference to me. Taking a stand and then pushing for it is a permissible democratic right, isn’t it? I have done that all through. For instance, I have always believed that judges should not be burdened with legal services, although it’s a law made by Parliament. I did not believe in it and I declined to take part: I recused myself as the seniormost judge of a high court. At the Supreme Court, I refused to take part in it.
Q: But did the issues you raised at the press conference get redressed at all?
A: No, the issues we raised have not been solved completely. A beginning has been made.
Q: You protested against the selective assignment of cases by the Chief Justice. Has that been resolved? A: No comment.
Q: The Memorandum of Procedure for the appointment of Supreme Court judges has not received any response from the government as yet. Constitutionally, what does that imply?
A: The constitutional bench’s order is that the memorandum must be finalised by the government. If the government does not finalise, that means it’s not going by the constitutional bench order.
Q: Are you satisfied with the way Judge Loya’s case has been dealt with?
A: The matter is sub judice. It will be terribly wrong to comment on it. Do you want me to go to jail?
Q: Calls for impeachment of the current CJI were raised this year. But you have said that impeachment cannot be a solution. What is?
A: Impeachment is a political process. In one of the judgments in Justice Karnan’s case, we said impeachment cannot be the solution for all the problems of
the judiciary. There are aberrations in the system. And there can be varying degrees of unacceptable activities of a judge. Say, a particular judge is corrupt, another judge lazy, yet another absolutely ignorant of the law. Impeachment cannot be the answer for everything. Unfortunately, the Constitution does not expressly provide what should be done. It’s an area that has to be either legislated or judicially determined. Some mechanism must evolve. Judiciary is a constantly changing body. Let’s hope the next generation of judges will debate and deal with these problems.
Q: In your letter to the CJI in March 2018, you quoted two legal luminaries, Lord Brigham and Justice Robert Jackson, to call a certain bonhomie between the judiciary and government the death knell of democracy. Is that one of your biggest concerns today? A: That’s always been a big concern. In a democratic society, it’s required that the functioning of the judiciary be absolutely independent. Anything which undermines that independence could be detrimental to the credibility of the institution.
Q: There have been recent cases where the government has ignored collegium directives on appointment of judges. Has that happened in the past?
A: Yes, in the past, too. On quite a few occasions, the governments of the day ignored the recommendations made by the collegium. In fact, the Second Judges Case of 1993 was a reaction to that process.
Q: The confrontation between the executive and the judiciary has been going on for a very long time. Why does it refuse to get resolved?
A: The press conference in January was an unprecedented event. We ourselves called it extraordinary. But confrontation between the executive and the judiciary is a continuous process. Think of the 1970s when three judges of the Supreme Court were superseded and a fourth judge made the Chief Justice. Was it not a tussle? Such tussles will always continue, not only in this country but in every democratic country. That’s because, ultimately, any government would like to control as much as possible. It is precisely with this understanding that constitutions are framed and express provisions made declaring the judiciary must remain independent. The framers of the Constitution, in this country and elsewhere, are not people who draft a legal document casually. They are men of wisdom, they know the history of human beings, of nations, what happened in the past, what kind of efforts were made by the governments to control the judiciary. And these efforts will always go on. That is the very nature of power. Remember that famous comment of Lord Acton, “Power corrupts.” What form the confrontation takes will depend on the democratic refinement of institutions and how enlightened civil societies are.
Q: The Supreme Court of India is often called the most powerful court in the world. Would you agree?
A: I don’t agree with that. Ultimately the strength of any court depends on the willingness of the executive to abide by the Rule of Law. Remember that famous episode of American history during the Civil War, when the Supreme Court issued a habeas corpus and Lincoln’s government refused to obey? What could the Supreme Court do about it? It all depends on the mutual respect between the executive, the judiciary and all the components of a democratic set up to comply with the commands of the Constitution.
Q: Legal experts are saying that with your retirement, the dynamics within the collegium will change, in tone and tenor, especially amid the ongoing tussle over judicial appointments. Would it mean a nail in the coffin for the collegium?
A: I don’t believe so. If it is a system likely to dissolve with the retirement of a judge, then it is a bad system. I am sure my colleagues will stand by the oaths they have taken and uphold the dignity of the institution.
Q: When you look back, what is it that brings you the greatest satisfaction?
A: That I could play some role in the functioning of the democratic Constitution of India. How successfully I did it is a matter of opinion and assessment. People only look at the masala part of it, the January press conference and so on. But jurisprudentially, it matters to me that I had an opportunity to serve the nation as a judge for the past 21 years. January 12 is only a minor aspect of it.
Q: Values that have made you who you are...
A: Two things I’ve always believed in: that democracy is the best form of government. And that democracy means respecting disagreements. I may not agree with you, but I respect your right to disagree.
Impeachment is a political process. In a judgment in Justice Karnan’s case, we said impeachment cannot be the solution for all problems of the judiciary