Chelameswar: 'Not Elevating Justice Gogoi to CJI Would Prove Our Charges True'

From the charge of selective allocation of cases to the move to impeach the current chief justice, the second senior-most judge on the Supreme Court spoke candidly on a range of legal issues.

Note: This article is first published on April 8, 2018 and is being republished in light of Justice Chelameswar’s retirement today.

New Delhi: Sixty-five minutes into his interview of Justice J. Chelameswar before an audience here on Saturday, the journalist Karan Thapar bowled a final googly aimed squarely at the stumps of the senior-most judge in the Supreme Court after the Chief Justice of India.

Chelameswar was near the end of what had been an unprecedented event in the annals of the Indian judiciary – the public grilling of a serving judge of the apex court – when Thapar slipped in ‘guideline number nine’ in the code of judicial ethics adopted by the Supreme Court in 1999: ‘A judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.’

“Didn’t you violate this precept when you addressed the media along with three other judges in January this year, and aren’t you violating it by giving this interview now,” asked Thapar.

Chelameswar’s reply was precise and to the point. Please read the guideline again, he said, it refers to judgments, and indeed judges should not say anything about them beyond what they have already written down. He reminded Thapar of his refusal – in this very interview – to say anything more about the Supreme Court’s judgment on the National Judicial Appointments Commission in which he had been the lone dissenting judge. But the bar on interviews could not possibly apply to a judge’s views on wider issues of relevance to the judiciary, he said. “I go somewhere, press would be there, they report something and if I interact with them, is it prohibited? Similarly, [the four judges] were talking about administrative problems. We were not breaching any of the time-honoured principles that we should not address the press,” he said.

Earlier, Chelameswar had said the January 12, 2018 press conference he held along with justices Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, was the result of “anguish” and “concern” as the issues they had raised with Chief Justice Dipak Misra about the functioning of the court had not been solved.

Those issues involved the relationship between the Supreme Court and the government, especially over the memorandum of procedure involved in selecting judges, as well as what they had alleged was the “selective” assignment of cases to particular benches.

Chelameswar was speaking at an event organised by the Harvard Club of India. “When I agreed to their invitation, I thought I would be speaking to a few Harvard alumni and law students,” the judge said at the beginning of he interaction. “Instead, I have been handed over to [Karan Thapar]”, he joked.

At stake, the judiciary as an institution

Chelameswar brought up the famous dissent of Justice Bhagwati in Sankal Chand – the judges case during the Emergency when 16 high court judges were transferred  by Indira Gandhi. The majority upheld the transfers despite the lack of consent of the judges transferred  but Bhagwati felt this would make it easy for the executive to target judges who were not delivering favourable verdicts. Revisiting Bhagwati, Chelameswar said each of those [punitive]  transfers had been cleared by the respective high court chief justices. That is why Justice J.S. Verma, in the Second Judges Case, emphasised the need for plurality as a safeguard, said Chelameswar.

The idea that judges have a responsibility to act in order to protect the judiciary and democracy was a constant theme throughout the conversation. As a good journalist, Thapar kept trying to pin Chelameswar down to specifics – to cite examples, name names – but Chelameswar, as a good judge, would not step outside the boundaries he had clearly drawn for himself. Nevertheless, what the audience got to witness was a rare display of judicial candour, made all the more remarkable by the no-holds barred questions that Thapar asked.

Karan Thapar and Justice J. Chelameswar at the end of their interaction on Saturday. Credit: The Wire

Justice Cheameswar, who spoke to Thapar on the broad theme of the  ‘role of judiciary in democracy’, also answered questions on the role of the CJI in allocating cases to different judges as the ‘master of roster’.

“The CJI is the ‘master of roster’. Undoubtedly, the CJI has this power. The CJI has the authority to constitute the benches but under constitutional system every power is coupled with certain responsibilities. The power is required to be exercised not because it exists but for the purpose of achieving public good. You don’t exercise the power merely because you have it,” he said.

Thapar asked him to identify particular cases where the docket had been assigned to a bench in a selective manner. He declined to answer. But when Thapar suggested the Jayalalithaa   disproportionate assets case might be an example, Chelameswar indirectly agreed. One expects the power to allocate cases to be used in such a way that the efficiency of the court increases, he said. But the Jayalalithaa verdict – rejecting the Karnataka high court’s acquittal – was reserved for a year and only pronounced after she had died. The allocation of the case, therefore, clearly did not serve the cause of efficiency, he noted.

That matter was handled by Justices Pinaki Chandra Ghose and Amitava Roy, though neither Thapar nor Chelameswar named them.

Chelameswar said that the criticism the four judges had made of the selective manner in which sensitive cases were being allocated was not meant as a criticism or vote of no confidence in the benches or judges concerned. “I am not commenting on any of my colleagues,” he said. “The issue is the integrity of the institution”.

Asked whether the selective allocation of cases undermined the public’s faith in the judiciary, he said, “I believe so”. But he parried the next question – Are certain benches chosen to please the government and produce an outcome the government wants – by saying, “I am not answering this question”. He also refused to discuss the “selective” allocation of the judge Loya PIL, widely seen as the last straw for the four judges who had waited two months for the the chief justice to address their concerns about the assignment of benches.

When Thapar said that in the division of labour the CJI announced earlier this year, he has kept PILs and other sensitive matters with himself and not given the four senior judges any important cases, Chelameswar said that if the chief justice feels he can handle all these cases himself, “that is good”. He added: “The importance of a judge is not a function of the cases he handles. There is a small way of handling great matters and a great way of handling small matters.”

Asked about Shanti Bhushan’s recent petition seeking regulation of the CJI’s powers to assign cases as master of the roster, Chelameswar said he would not comment on an ongoing case.

‘Impeachment not the only answer’

There was a flutter of nervous excitement in the audience – and some gasps of protest – when Thapar asked Chelameswar whether he thought there is “sufficient ground for seeking impeachment of the Chief Justice of India,” a reference to a proposal mooted recently by some opposition MPs.

“The other day, someone asked for my impeachment,” he replied. “I don’t know why this nation is worried about impeachment so much.” Impeachment, he said, cannot be the only answer to every question or problem. “In fact, we [Chelameswar and Justice Gogoi] wrote in our judgment on Justice C.S. Karnan that apart from [impeachment] there must be mechanisms to put the system in order.”

However, Chelameswar did question the rationale for the chief justice over-ruling the order he had passed in the Prasad Educational Trust matter moved by Kamini Jaiswal. Denying that he had encroached on the prerogatives of the CJI, Chelameswar said that the arrest of a former high court judge – I.Q Quddusi – and the evidence that had come to light, suggested an effort was being made to “pollute the stream the justice”. He said that he is still trying to understand why his order had been countermanded.

Justice Jasti Chelameswar, greeting reporters after his on-stage interview at an event organised by the Harvard Club of India on Saturday. Credit: The Wire

Chelameswar also explained how he had come upon the idea that the court’s five senior-most judges should hear the matter – and not any other bench. He said the eminent jurist Fali Nariman had narrated an incident from the Emergency when the former attorney general C.K. Daphtary requested the then CJI A.N. Ray to think carefully about who he was going to put on the bench hearing preventive detention cases. Nariman wrote in his 2012 autobiography, Before Memory Fades, that  “the bench was ultimately announced, and we were all pleasantly surprised that it was not hand-picked; it comprised the five senior-most judges of the court.” In other words, Nariman had himself suggested a bench comprising the five senior-most judges was likely to be the most objective.

Thapar then asked Chelameswar whether it was correct for Chief Justice Dipak Misra to have heard the Prasad Educational Trust matter himself even though it concerned him. “I will not answer that question”, he replied.

Justice Gogoi as the next chief justice

Another sharp question Thapar threw at the judge was whether he was apprehensive  that Justice Gogoi – who was part of the November 2017 letter written to the CJI and who was the one who confirmed that the Loya case had been the trigger for their decision to speak to the media – might not be elevated as the next CJI. Dipak Misra will retire on October 2, 2018 and Gogoi would be the second most-senior judge, as Chelameswar would have retired by then, and would as per convention  be elevated to the chief justice’s position. Justice Chelameswar said that he hoped Justice Gogoi would not be passed over and if he were to be denied the chiefship, this would be proof that what the four judges had said in their January 12 press conference was “true”.

Chelameswar acknowledged that the standoff between the government and the Supreme Court collegium was carrying on over the nomination of Justice K.M. Joseph and others. Joseph, who is acting chief justice of the Uttarakhand high court is allegedly in the Centre’s cross-hairs because he had invalidated the imposition of president’s rule in the state.

Implicitly contradicting law minister Ravi Shankar Prasad’s claims – made a year ago – that some progress had been made on finalising the memorandum of procedure that will govern the interaction between the Supreme Court collegium and the executive, Chelameswar said, “I am not aware of government response to the collegium in terms of certain things to be put into memorandum of procedure. We have asked the government to tell us the reason behind a collegium recommendation being rejected but we are yet to hear from them.”

‘No government employment after retirement’

Chelameswar said that he and the other three judges who had gone public with their concerns in January had acted out of a sense of anguish.  “None of us are fighting for private property [but for] institutional issues”.

He made it clear that as far as he was concerned, he would not seek or accept any government job after his retirement on June 22.

While a number of constitutional posts are reserved for retired judges of the Supreme Court – in the National Human Rights Commission, for example – the legal fraternity has frowned upon judges accepting political appointments after retirement. A prime example of this was the Modi government’s appointment of Justice P. Sathasivam as governor of Kerala.