Justice Chelameswar’s stepping out as a leader of the collegium is important, but as a judge in NJAC case, he privileged the executive as central to individual liberty and the structure of constitutional institutions.
Courts speak through judgments. Judges often find themselves deciding cases that shape our constitutional democracy.
Justice Jasti Chelameswar found himself in a position to shape our constitutional democracy on quite a few occasions.
The test in these cases was to balance individual liberties of citizens (e.g. right to political participation), role of constitutional institutions (e.g. the role of judiciary), and the role of government or the executive. In each such instance, he decreed that the executive, seen as representing the popular will, triumphs over others in defining the Indian republic.
However, Chelameswar’s legacy, as a collegium member and as the one who presided over the landmark press conference, was not premised on such reasoning. His legacy as a judge, exercising judicial review, was radically different from his views as a member of the collegium, exercising administrative power.
Therefore, we must assess his legacy as a judge and as a collegium member separately.
On judicial review and legislative supremacy
J. Chelameswar, in the Rajbala case, held that the court had no legal grounds to interfere if the state holds educational qualifications and the mandatory requirement of a toilet as pre-conditions to stand for elections. The petitioners argued that such pre-conditions to the right to be elected are arbitrary and antithetical to the equality clause in the Constitution.
However, the court was of the opinion that arbitrariness in itself is not a reason to strike down a law. Chelameswar also held that any interference would amount to passing value judgement on policy. The judgment found such electoral pre-conditions valid, without considering the social circumstances that often hinder a person from completing schooling in an unequal society.
Since then, Justice Rohinton F. Nariman’s opinion in the Triple Talaq judgment (2017) has made it clear that arbitrariness is a facet of equality and can be a ground to nullify a legislative act. In view of this order, the Rajbala ruling on arbitrariness is now incorrect.
Judge vs collegium member
Chelameswar’s contrasting position as a judge and as a member of collegium is best exemplified by his dissent in the NJAC case and his extraordinary press conference in January, respectively.
In 2015, Justice Chelameswar, in his dissent in the National Judicial Accountability Commission (NJAC), questioned the role of the collegium in nominating judges.
“… 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? … Have we acquired independence greater than our intelligence, maturity and nature could digest…?”
Chelameswar saw no reason why the collegium must isolate itself from the elected representatives of various political parties. Although Justice M.B. Lokur explained the lessons of history on the issue of appointments, Chelameswar maintained that the collegium was being undemocratic in not involving the political establishment.
There were repercussions of the NJAC judgment and the role played by Chelameswar.
His dissent was hailed by members of the bar, civil society and ministers of the government. Soon after the dissent, Chelameswar wrote to then CJI T.S. Thakur, expressing his reservations on the manner in which names of judges were finalised – arguing for more deliberations and recordings. His letters were played up by the government and the media. The collegium responded by putting out its recommendations and reasons for public viewing.
In November last year, Chelameswar took cognizance of a matter regarding medical admissions and set up a constitution bench to decide the issue. The CJI, however, took the case away from this bench and got it listed before a constitution bench led by him. Subsequently, the CJI went on to set up constitution benches in several important matters, without including members of the collegium.
In January, through a press conference, Chelameswar pleaded to the nation that there is a threat to the independence of the judiciary. The government viewed it as an act of insubordination rather than an act of fearlessness and desperation. The same government, which had earlier applauded his NJAC dissent and the letters to attack the collegium system, now questioned him.
In the meantime, the administrative powers of the collegium in nominating judges were being undermined by the government, as seen in the case of Justice K.M. Joseph. Chelameswar immediately wrote to the CJI stating that the collegium’s recommendation must be honoured.
But the olive branch, in the form of the “memorandum of procedure”, offered by an apologetic collegium post the NJAC decision was now being used by the government to make a mockery of the judgment.
Chelameswar’s stepping out as a leader of the collegium is important because it argued for the Supreme Court’s integrity in the face of executive overreach. However, as a judge in the NJAC and Rajbala cases, he privileged the executive as central to individual liberty and the structure of constitutional institutions.
Abhik Chimni practises at the Supreme Court and writes on issues of law. He can be reached @abhik_chimni
I remember the judge as a person whose VVIP judicial car blocked the exit at cochin airport and handicapped people and elderly citizens had to wait in their wheel chairs long, till the judge finished his talks with friends and left in his car
I do not know if this would be inappropriate to say
I do not see any contradiction as such.
In the Rajbala and NJAC case, he privileged the Executive as he felt that it was right.
As a leader of the collegium he stepped out to oppose the Executive over-reach, which was also right.
In life, one side will neither be correct all the time, nor in-correct. Justice Chelameswar is actually looking at the facts and deciding accordingly, and not being driven by his biases.
A true sign of a Justice.
I first became aware of Justice Chelameswar when he and three senior colleagues spoke directly to the Indian people. That was an act of rare courage and openness, not something they would have done without considerable forethought and a few misgivings. On the collegium, whatever its limitations, it is the least bad option. This is sacred space the apex court has carved out for itself, to protect against the depredations first seen in the period leading up to the emergency. Until such time as the nation can be completely sanguine about the executive, the present system, with such improvements as the collegium itself decides upon with the passage of time, should endure.