Not one for rituals, Justice Chelameswar honours one, exits

The press conference on January 12 at Justice Chelameswar’s residence, with three of the others who constitute the Collegium, marked an unusually hectic start to the year for the Court.

Written by Seema Chishti | New Delhi | Updated: May 19, 2018 7:03:44 am
Not one for rituals, Justice Chelameswar honours one, exits Justice Chelameswar at his residence, Friday. (Express photo by Prem Nath Pandey)

Justice Jasti Chelameswar told visitors recently how “war and cyclones are good to read about, but are hard to endure”. His experience of “cyclones” could have been from his days on the Andhra coast, his schooling at the Hindu High School in Machilipatnam in Krishna district, and his Physics degree from the Madras Loyola College. His graduation in Law from Andhra University, Visakhapatnam, in 1976 too would have accustomed him to coastal cyclones.

The familiarity with “war” may have had more to do with the time this third generation lawyer-then-judge spent later in the hinterland — in Hyderabad and in New Delhi, at the Supreme Court were his tenure started on October 11, 2011. Sworn in on the same day as present Chief Justice of India Dipak Misra, Justice Chelameswar sat in Court No. 1 on Friday, his last working day — this has been the tradition at the Supreme Court for an outgoing judge. CJI Misra and Justice Chelameswar were together for 45 minutes and the latter was “all smiles”. The Chief Justice too reciprocated, and made attempts to ensure that his brother judge does not break this one tradition. Because Justice Chelameswar proudly wears the badge of an iconoclast. He has never been one for formality or custom. He refused the formal farewell from the Supreme Court Bar Council, like he did in the High Courts of Gauhati and Kerala where he served as Chief for long years.

He leaves behind a formidable legacy, the impact of which is yet to be fully felt or known since the Supreme Court is still to reset its terms with a single-party majority government at the Centre, the first to be in power in 30 years.

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The press conference on January 12 at Justice Chelameswar’s residence, with three of the others who constitute the Collegium, marked an unusually hectic start to the year for the Court. Justice Chelameswar said he was left “with no option” but to make public the letter that the four Justices had written to the Chief. It pointed to the unease in the Court over the allocation of cases.

Events thereafter never really got off the roller-coaster — whether it was the perception that the Centre did not approve of the choices made for the Supreme Court by fellow judges, or about who should hear which case. The ferment, far from being resolved, served as incredible public education on norms and institutions in a democracy and the necessity of the system balancing all pillars.

The biggest challenge for the Courts, where Justice Chelameswar played a lead role as a dissenter, was the time when the bid to challenge the Collegium system by Parliament, seeking a greater role for the Executive in the appointment of judges, was struck down.
The National Judicial Commission (NJAC) was declared unconstitutional by 4-1, and Justice Chelameswar was the “1” who provided the dissent, which remains the only carefully crafted legal points the NDA government can still quote from to argue for a more accountable Judiciary; “To hold that it (the government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy.”

Justice Chelameswar did more than jot dissent. His interventions and participation in the Collegium seemed a post-script, demanding more transparency, accountability from the system itself to make it stronger.

In the judgment on Section 66A of the IT Act, he and Justice Rohinton Nariman struck it down as unconstitutional and violative of the fundamental right to free speech and expression under Article 19 of the Constitution. But for Justice Chelameswar, the fundamental right to privacy may never have seen the light of day, as he was the one who recommended that the government assertion that there was no fundamental right to privacy be heard separately. He went on to author one of the finest judgments on the right to privacy.
His judgment in the Rajbala versus State of Haryana raised eyebrows though when he upheld what Haryana had decided on conditions like literacy for those contesting local elections in the state.

It was in Court No. 2 last November when he proceeded to refer the Medical Council of India case to a particular bench excluding the Chief Justice that all hell broke loose. The Chief Justice was to order an unprecedented reversal of the order and underline his role as the Master of Roster being central and paramount.

Two months ago, Justice Chelameswar wrote to all judges of the Supreme Court on the need to actively move to take back the authority of the apex court — whether it was the matter of the Karnataka High Court in which the Centre was writing directly to the High Court against norms, or about recommendations of the Collegium being blocked.

He declined a farewell, but senior members of the Bar, a day before his retirement, showered fulsome praise, with Shanti Bhushan going as far to say “He (Justice H R Khanna) sat in Court Room 2 and people talk about him all the time. His portrait is here. I am sure yours will be here soon.” Justice Khanna wrote the dissent in the ADM Jabalpur case arguing against the suspension of personal liberty in an Emergency.

Dushyant Dave, Prashant Bhushan joined others in doing so, prompting a visibly moved Justice Chelameswar to “apologise” to members of the Bar, in case he had been unduly harsh on them, or sometimes “angry and irritated” in the past “six years and ten months”.
This morning, as he prepared to set out for the Supreme Court one final time (Friday was the last working day since he retires on June 22 when the court will be on vacation), Justice Chelameswar realised Justice Ranjan Gogoi, his colleague and next in line for the post of Chief Justice, had come to fetch him. In the evening, Justice Gogoi also dropped him home.

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