THE CONCERNS expressed over the Supreme Court’s functioning by four of its most senior judges would come true if the unprecedented press conference they addressed three months ago came in the way of one of them, Justice Ranjan Gogoi, becoming the next Chief Justice of India, according to Justice J Chelameswar.
In conversation with journalist Karan Thapar on ‘Role of Judiciary in a Democracy’ at an event organised by the Harvard Club of India, Justice Chelameswar said, “I hope it will not happen. If, if, if, I repeat, if it happens, it will only prove whatever we said at the press conference is true.”
On January 12, Justice Chelameswar and three of his colleagues — Justices Gogoi, Madan B Lokur and Kurian Joseph — had released a letter at the press conference in which they raised questions on the court’s functioning, particularly the allocation of cases by Chief Justice of India Dipak Misra.
Justice Chelameswar is scheduled to retire in June and Justice Gogoi is next in line, in terms of seniority, to take over from CJI Misra later this year. Thapar had asked Justice Chelameswar if he was “apprehensive” that Justice Gogoi, “who was one of the authors of the letter” addressed to CJI Misra, “might not be elevated to CJI when Justice Misra retires”.
At first, the judge said, “I’m not an astrologer”. Thapar then asked if he was worried that what had happened in the past — judges being superseded — would happen to Justice Gogoi. Responding to a question on the CJI’s role as master of the roster, Justice Chelameswar said, “Undoubtedly, the CJI would have the power to constitute the benches. But under the Constitutional system, every power is coupled with certain responsibilities. The power is required to be exercised not really because the power exists, but for the purpose of achieving some public good. Don’t exercise the power merely because you have it, Supreme Court has been repeatedly saying in every case wherever such question arose that every power is trust. It has be exercised for benefit of the body politic.”
Justice Chelameswar also spoke about the controversy over the order given by a two-judge bench headed by him, which directed a petition seeking a probe into the arrest of former Orissa High Court Judge I M Quddussi be placed before the five most senior judges on the judicial side. The order was subsequently annulled by a Constitution bench set up on the CJI’s order.
“I’m still struggling with the question, what was it that required a reversal of the order passed by me and another… I didn’t pick up that case. Since the matter was presented to me when mentioning was officially required to be made before the second court, it was mentioned… A former HC judge was arrested and released on bail. Papers presented before us showed that the man was trying to pollute the streams of justice. I thought it’s too serious a matter for the nation and the institution and required hearing by the Constitution bench.”
To a specific follow-up query, he said, “I did believe I was acting within my powers”, and added that he was not transgressing the CJI’s powers. Justice Chelameswar repeated the charge raised by him and the three colleagues in their letter to the CJI about Chief Justices allocating cases to preferred benches. He said, “There have always been (such) instances.”
Asked if he was saying that this had been happening, he answered in the affirmative. To a query if the case against late Tamil Nadu Chief Minister J Jayalalithaa was one of preferential allotment, he said, “Yes”. Asked about allegations of selective allotment, he said the question is: “As an intuition, are we able to sustain the faith of the general people of this country? Would this kind of allocation be good for the institution?” He said such doubts will undermine people’s faith in the institution and hurt democracy. “Justice must not only be served, but also must appear to have been served… If the process is not transparent, it can lead to suspicions and suspicions are always dangerous to institutions,” he said.
Justice Chelameswar was also asked to speak about his recent letter to the CJI taking exception to the central government writing to the Karnataka High Court Chief Justice seeking an inquiry into allegations against a judge whose name was cleared twice by the Supreme Court Collegium for appointment as High Court judge.
“Necessarily, I believe the recommendation should be to Supreme Court, not the High Court Chief Justice, as the Supreme Court had cleared it twice. Therefore, I thought it was not Constitutionally proper for the government. And unfortunately, the Chief Justice of Karnataka High Court chose to act on it,” he said.
Justice Chelameswar said he had no fears over the government’s delay in taking a decision on the Collegium’s decision to elevate Uttarakhand Chief Justice K M Joseph and Advocate Indu Malhotra to the apex court. “As of now, I don’t share any fear… So far they (government) have not said anything.
Asked if the delay worried him, he said, “Worry is not the right word. At least, I’m concerned, I’m sure the court is concerned”.
In an apparent reference to reports of attempts being made to impeach CJI Misra, Thapar asked Justice Chelameswar: “Do we have sufficient grounds for seeking the impeachment of the CJI?” The judge replied: “Somebody was saying I should be impeached. I don’t know why this nation is worried about impeachment, obsessed about it. In fact, we wrote in the (Justice) Karnan judgement, me and (Justice) Gogoi, that there should be something apart from this to put the system in order. Impeachment can’t be the answer to every question”.
He added that the need was to “set up a proper system whereby these problems will not arise”.
Asked why the four senior judges took up with the CJI the direction of a two-judge bench of the apex court regarding the Memorandum of Procedure (MoP), Justice Chelameswar said, “Under the NJAC (National Judicial Appointments Commission) judgment, the MoP is required to be finalised by government in consultation with Collegium… If matter is dealt with on the judicial side by a Division Bench, then the Collegium will be bound by judicial orders… If the two-judge bench passes some order, it will become difficult for both the government as well as the Collegium to handle the matter as they will be bound by that order and that will not be consistent with the directions issued in NJAC matter. That’s what four of us believe.”
On differences between the government and Collegium over the former’s suggestion that the MoP should have a provision to reject a candidate who is being considered for appointment as a judge on ground of national security, he said, “Personally, I don’t think this is such an insurmountable difficulty.”
He added, “If the government thinks the elevation of any judge would pose a threat to national security, all that the government has to do is to give the basis on which it came to that conclusion. I don’t think any Collegium would be unreasonable to reject the Government’s opinion if it is supported by material.”
Justice Chelameswar backed Union Law Minister Ravi Shankar Prasad’s suggestion that there should be an audit of the Collegium system. “In any kind of democracy, periodic audit is always necessary to whether we are progressing on the right lines or not,” he said. He also asserted that “after retirement, I will not seek any appointment under any government”.