M.K. Venu: As you all know, he along with three other judges – the senior-most – took this courageous action of holding a press briefing in his house. And for about, I think about two hours or so, maybe one-and-a-half hours – I have never seen the entire national media focused on one person for one-and-a-half hours, it was like the most concentrated media attention anybody in my memory would have got…Justice Jasti Chelameswar: Which destroyed my privacy..MKV: I was there, he did it in his lawns and one of the judges there today is the chief justice of India. I personally believe that that the action of Mr Chelameswar may have contributed to the elevation of one of the other judges who was there to chief justice. That aside, I would, without much ado, would just like to preserve time and immediately get Justice Chelameswar to talk about – since he’s never spoken about what led to that great moment which led to talk about reform in the highest judiciary – what led to that and what happened that morning, how did it come about.It was indeed an unprecedented action, never seen before, at least in the Supreme Court’s history. He had immense support from large sections of the public. Among judges and practicing lawyers and advocates, many supported him and some felt that maybe his action was too radical, maybe it was something which, while was aimed at reforming the highest judiciary, may have sort of, in some sense… the institution may have been hurt. These were some of the reactions from others.But Mr Chelameswar has taken the rough with the smooth and here he is today. So my only question to him obviously would be, just tell us how it happened, how it came about.JC: Mr Venu, it is not that something which happened overnight or it was an impulsive decision that was taken. We were not children, all four of us were above 60, of course I am 65+ now. Another two of us are going to be above 65 soon: one in the next month and the other one at the end of December. And all of us – I held, and they are still holding – responsible offices in this country and we are not insane people to hold that meeting. There is a compendium of reasons which prompted us to go and hold the press conference. We knew it was an unprecedented thing.Well of course, in the lighter vein, there is a joke in the legal world. I’m sure most of you must have been familiar with, in fact I have not read much except one or two… that Sherlock Holmes novels… there is a character called Watson in that. Now there is a joke about the man: the man is so precedent-oriented that he married a widow because she has a precedence of marriage.See this whole system has become precedent-oriented. “See there is no precedent, no judge earlier held a press conference, therefore how could they do…” – is the question. Well, of course, it is a matter of opinion, but it was not something which happened over one day – it happened over a period of time, with compelling reasons. Now what exactly are the reasons – factual details I’m not going to disclose, not in the immediate future for various reasons. But to the extent that the nation is required to know, we’ve already disclosed.In fact, this press conference was preceded by a letter given to the then chief justice, almost two-and-a-half months back to the event pointing out… that letter is in the public domain. Now notwithstanding the letter, lot of things which according to us – maybe we are wrong, that is a different matter, it’s a matter of opinion and, believe me, I’m a democrat, I don’t quarrel opinions. My opinion might have been wrong, the opinion of my colleagues might have been wrong, that’s a different story, but we believed that we were under an obligation to the nation to make that statement that day. We made it. Now, what [were] the individual fights that led to that, well that I’m not going to disclose, at least in the near future. At a point of time before the sun sets in my life, I’ll disclose it.Also read: The Letter Four Supreme Court Justices Sent to Chief Justice Dipak MishraMKV: Okay, I’ll stick to some of the facts which are already in the public domain which you have maintained in the letter and which subsequently you have mentioned in one interview that you gave Karan Thapar before. I think that was just on the eve of your…JC: No, Karan Thapar was in the month of February – February or March. The last two interviews I gave – one to Mr Rajdeep Sardesai and then NDTV, on the day I was demitting office.MKV: Okay. So the key point that you made in your press briefing was, you said democracy was in peril. Now, in what way was democracy in peril? I’m asking you this because the articulation of the issues at hand that day was, as many media organisations tried to analyse, was, they argued that it was something internal to the SC. The way probably bench shopping was happening, the way some cases were being allocated. And you were focused on some… those issues particularly. But when you said democracy was in peril, one got the impression that you were talking about a much broader problem. So you would like to tell us?JC: Yes. I’ll answer it. I’m bound to answer it since I’ve already made that statement. And mind you, it was not a sporadic statement made by me. Each one of the words uttered in the meeting were calibrated, they were discussed before we made that press conference and I was duly authorised by my other three colleagues to make those statements. It’s not that I just blurted out sporadically. No.Democracy as envisaged by the Indian constitution looked at the judiciary as some kind of an impartial arbiter between the state and the citizen. Apart from the traditional function of judiciary as an adjudicator of private disputes, the role of the judiciary in this – constitutional judiciary – as designed by the constitution – in this country, –is that it has an obligation, it has a duty, it has the jurisdiction to adjudicate disputes arising between the citizen and the state, the subject and the state. In fact, a juris took objection when I used the word subject. I deliberately used it because it’s a jurisprudentially approved expression.See, the Indian constitution and the Indian laws not only regulate the lives of all the citizens. Those that are not citizens – foreigners who come here to stay temporarily, for a short period of time either on a job or even as a tourist, they are also subject to the Indian laws to a certain extent. For example criminal law, nobody is an exception. If a foreigner comes here and commits a murder, you’re not a citizen, can you get away with it? You’re still a subject. But I used this word, well, very a famous juris in this country, in one of my judgements, took an objection. Well, if you don’t understand the context in which I used it, I can’t help it, that’s a different matter. That is the sense in which I used this. And if that is the role, that is the prime, important role assigned to the constitutional courts of this country, they’re expected to be absolutely impartial and transparent in their dealings with the cases where particularly the state is a part.See, it’s easy to be impartial in a four acre land dispute between a joint family – where you don’t know them and the stakes are too low. You have no interest, you can decide according to your wisdom or lack of it.But when the state is on one side, all kinds of considerations crop in. Please remember the fact [that] judges are appointed by the state. Judges are always paid by the state. Not to talk about post-retiral kicks. So therefore some amount of interphase between the state and the judges, the judiciary, is rewardable. That’s what I wrote in a judgment. To believe that in a democracy the elected government should have no say at all in the appointment of judges is something which I can’t understand as a student of constitutional law. But to what extent it can go is a different question.To say that the executive will not have a say in the matter, as a student of constitutional law I am still not able to understand this statement. Well, but that’s a law declared by the court, we are bound by it. But the point is, how the state should exercise that power, how it should wield that power, in what manner should it exercise, to what limited extent… When the constitution was framed, the framers of the constitution knew these problems, after all they were men and women of great experience. They knew history, they knew their country, their society, its problems… and the history of democracy in the world. The need to have an independent judiciary. They designed this scheme, saying that since ultimately the government is responsible for people, they get elected, they should have the power. But that power is once again qualified by imposing an obligation to consult the judiciary, the chief justice of India. That is the text of the constitution.Now, while interpreting the expression “the chief justice of India”, subsequently, the Second Judges case, a nine-judge bench of the Supreme Court laid down, looking at various factors and various earlier practices, that it’s not enough to consult only the chief justice of India, but a collegium of a certain number of judges, because the composition of the collegium varies depending upon the purpose. If it’s elevation to the high court, then the number of judges is the first three. If the Supreme court, the first five. If it is a case of transfer, five judges. Therefore the collegium composition varies depending on the purpose for which it is sitting. That’s the interpretation placed by the Supreme Court nine-judge bench. That is the law of the land. Now, whether such a system requires some modification or not is a matter of opinion. Parliament opined that the system required a modification, introduced the amendment – 99th amendment. And yes, it was brought in. It was debated and majority took the opinion – viewed the amendment as invalid. Though I was a dissenter.MKV: Justice Ranjan Gogoi, who today is the CJI, had at that time revealed that the trigger was the judge Loya case.JC: No, no, don’t say trigger. He didn’t say that, somebody pestered him. This is the reason. Then he said yes, that’s also a reason. He said, if you recollect, please play it back, it is there on video. He didn’t say it was the reason.MKV: You’re right, I correct myself. Kind of prompting back.JC: Because, after all the journalists..MKV: The journalists are equally notorious.JC: See, after all, they are interested in masala. Whether we could have held the press conference one day before or two days later, well it was our choice and why it happened was a different matter. I told you I’ll disclose it later, that’s not the point.But, when we handed over the letter, a letter written two months prior to it, just try to understand, it was not that that particular case or that particular morning. Something happened, therefore we went…MKV: Yes, it was after a series of politically sensitive cases. So tell me, so much time has elapsed since there’s been a change of CJI, you’ve been in retirement. How do you see things now? You have a vantage point looking at things from the outside. Do you think the issues that you’ve raised are being addressed? Do you think there are norms now for assignment of cases… politically sensitive cases? Or is it that the five judge-bench which decided on the master of roster case, they have actually set things in the opposite direction?JC: See, no. How do you see things… I am not a clairvoyant, I don’t know what’s going to happen in this country.MKV: Just from the outside..JC: But, as a famous American jurist would say about the constitution – In the context of the American constitution, it’s valid for any constitutional system – he says “It’s an intentionally incomplete and deliberately open textual document for the participatory evolution of democratic practices.” Any democracy, it’s a participatory evolution. How it’s going to evolve, it depends upon all the players, the civil society ultimately, how civil society’s going to react to a particular thing.Thing is, there were certain occurrences or practices which in our view were not consistent with the constitution, both the text and scheme of the constitution. I think all of you had held, and perhaps some of them are still holding, some of them have held responsible positions in the government at various levels. Whole system of democracy is built on a scheme of consultative process from top to bottom, starting from the highest point of cabinet. In the bureaucracy, from the lowest babu to the chief secretary or the cabinet secretary, whatever, the assignment of highest responsibility, you know it better than me.It is a consultative process, finally the decision is arrived it. And how is it that this principle of master of the roster excluding everybody for everything – nobody ever disputed the fact, it is a rule of convenience – say for example, the American Supreme Court, this principle would simply have no application because the court would sit and bank, all the nine judges sit to hear each and every case which comes before them. This principle simply is written and there. The question of allocation of cases doesn’t arise because all the cases go before the full court. It’s only in a court like this, where the court sits in benches, multiple benches. Necessarily, someone has to make the assignment of work. Well naturally this goes to the chief justice. So somebody has to do it, so as tradition, the chief justice does it. Fair enough, nobody disputed it. But question is, can it be done irrationally? Or should there be some transparent and rational process was the question. And the point… it’s a matter of record today I’ll tell you, matters which were listed before some of us, four of us were withdrawn at a later point of time and assigned to some other judge.MKV: Without even consultation?JC: What is the consultation? Simply the matter would disappear. It is a matter of Supreme Court’s record, just check in the roster.MKV: Without emphasising it?JC: Now, the authority of the chief justice to withdraw a case from any one of the benches also is not doubted. He has the power. Any chief justice.. but how you exercise it is a question. You don’t exercise it merely, no. If there is a specific reason… The least expected is, a word to the colleague: ‘for this reason I am withdrawing this case’. Maybe there is some reason, somebody complained. Or, well whatever is the reason, you have some reason, please do it. Simply withdraw cases which are listed before some judge? Apart from the individual insult to the… Now, people said no, some very learned man said ‘All these people suspecting the chief justice’… But they can talk anything, we know what happened inside. When we speak out, well the comment is: ‘No it has never happened and you are destroying the institution”. When we don’t speak out, ‘Now why would they not sit down and discuss the thing and settle the matter? Why should they wash their dirty linen in the market?’ When do we discuss these matters?MKV: So this was a difficult decision for you?JC: It was, my open statement was that. With no pleasure in my heart we’re taking this decision, the press conference.MKV: But still, when I was talking to you yesterday, you were pointing out that there could be times when the higher judiciary, anywhere, I’m not talking about India. You cited Abraham Lincoln. So there was a time when there was so much bias in the judiciary there that Abraham Lincoln had to push them back and he did implement some of their ..He was trying to implement liberalisation right?JC: See.. so that’s why, traditionally, there were some areas which the judiciary never ventured into. Policy areas. Because we are not voted to power. We don’t know what are the final nuances involved in it. There could be implications of international relations in a particular policy. So therefore, it’s basically for the policy maker to… Now unless there is something in the policy which is plainly inconsistent with the constitution [or violates one of the fundamental rights], otherwise only because it’s not wise… if you believe a policy of the government is not wise, you don’t interfere. They’ll be answerable to the people in the next election.MKV: This brings me to the larger question. Today there is a, you know, civil society… I think people today have one complaint, which is that Supreme Court is ready to intervene in policy issues where it, as you said, may not have the expertise. But when it comes to a question of rights, when they come to the Supreme Court, for fundamental rights, they shy away from taking up those cases. I’ll give you one example. The justice, the CJI, it was a disappointment for us journalists and many others that when this matter came to him to strike down criminal defamation, which has been struck down all over, most of the world, he said ‘No, the Supreme Court need not take that decision, let the parliament decide it’.JC: Not struck down, not struck down no, but legislatively…MKV: Yeah, but he said let the parliament do it. I mean, we were expecting the Supreme Court to do it.JC: Well lot of people expect lot of things.MKV: (Laughing) Some of the cases against us, against The Wire would have, could have you know, been gone without saying..JC: The point is this. This is the problem exactly I was pointing out. This is a problem inbuilt in the design of the Indian Supreme Court and the way it evolved. If the court sat and [inaudible], of course this court with 30 judges, 32 perhaps was not in the contemplation of the constitution framers. It started as a court of seven judges. For a period of time, the numbers increased. With the numbers, the volume of the litigation also increased. Nothing is resolved. This is not the point. But 30 judges sitting as one unit perhaps is not possible at all. It cannot be practical.Now the… you have different benches and remember, after all judges are human beings. They have their own thought process, their own beliefs. Now you have an expectation, that particular judgement won’t agree with you. Now if the court sits, there will be certainty that yes, there’s nine judges, five judges agree with you, or the judges don’t agree with your viewpoint, well that is the law, that is the arrangement we have made in the constitutional system. Somebody has to decide. We have designed an institution which decides the question. If you don’t agree with it, you don’t agree with it. Continue .. maybe sometime later, maybe a different set of judges, a generation later might agree with you. That is the whole idea of a dissenting judgement, isn’t it?MKV: So do you think… There has been debate on this in the past. Again this comes down to assignment of cases to, you know, various benches. Do you think there should be a system where… that there should be a constitutional court with maybe, whatever, six, seven, ten judges and there should be an appeals court? So a constitutional matters come to one… I mean, can some administrative arrangements be changed within the present framework without resorting to, without going to parliament?JC: It is possible, it is possible to do it. For why ddid all the stakeholders sit and discuss the matter and take a decision? In fact, a few years back, on one occasion there was… I mean I’m sure all of you know… when the chief justice retires, the prime minister hosts a dinner at his residence, to all the judges on the SC, and when the new CJI takes over, the rashtrapati hosts a dinner, where not only judges, but senior bureaucrats and ministers are also invited there. The point is in one of those dinners in the prime minister’s residence a few years back, during Manmohan Singh’s tenure, a few senior ministers were there and I happened to sit at one of those tables where a minister and a very senior bureaucrat and a couple of my own colleagues… and about… we were recollect the judgement where the SC struck down Section 8 subsection 4 of the Representation of People Act which led to the issuance of an ordinance and the president of the Congress party tore up that bill, that ordinance you know, that case, I am talking about that judgement.When having dinner, one of the gentlemen, the minister, one of the ministers who was sitting with us at the table, he tried to raise the topic saying ‘Justice Chelamaswar, don’t you think the… something…’ Then I told him, ‘Gentleman, it’s too serious a matter for a dining table conversation. If you think that some reform is required, you hold a proper meeting, a proper forum’. See nobody is willing to debate. If you are suggesting something, then the reform should be preceded by the appropriate discussion, deliberation by all the concerned, the concerned stakeholders. Government is a stakeholder. [Even civil society] Civil society. Certainly, certainly. I was only the judge who said civil society’s participation in the judges selection is welcome.MKV: I will ask just one or two last questions before taking it to the audience. One is this backlog problem which media keeps writing about for the last twenty years – we’ve been saying, it has reached some enormous proportions, 3.3 crore of total backlog cases.JC: In the country. Not in the Supreme Court. In the whole country.MKV: Whole country, yes.JC: Supreme Court is about 50,000 (laughing).MKV: Supreme Court has about 58,000, high court has about 43 lakhs.JC: Yeah yeah, Allahabad high court alone has about a million cases pending.MKV: So have you, in the course of your stay at the SC, have you discussed how to deal with this supply problem? How to supply more courts, more judges?JC: Discuss with whom?No, I’m serious. Discuss with whom?MKV: First amongst yourselves, then with law minister, then..JC: See, I’ll tell you something, notwithstanding the grand assertion about the master-of-the-roster business, if a discussion about this kind of thing must be done, the initiative to do it must start there. Nobody ever took the initiative. Nobody ever called for a discussion on this. On the other hand, it was a bench which I presided over.. See, what happened, one of those matters which came from Allahabad, somebody was committed for an offense on the 3 or 2, the appeal is pending and he’s in jail for almost ten years, the appeal is not getting listed, the matter came before us. And all of us know the system we know, some of these high courts, these matters pend for decades for various reasons of course. There’s no point in blaming individual institutions or individuals in this matter… reasons are too many, requires a detailed analysis.But Allahabad is a big city, UP is a big state, huge population of 20 crores and the number of judges and all these reasons. Now, when we saw this, we thought that something is required to be done. We initiated, on the judicial side, we initiated a process. We called for a report from the high court. Then we appointed an amicus curiae to make suggestions on how to get over this problem. And I’m told now the scope of that inquiry is enlarged by this current bench, whichever is hearing the matter. They extended it to other high courts also, they called for information. But some attempt is being made, whatever is within our reach. Now, see, except… I’ll tell you an anecdote. I was the chief justice of Kerala before I reached the Supreme Court – for about 18 months I was there. One of those days, some event connected with the courts, I was there as chief justice, I was there in the programme. The then law minister incidentally happened to be the deputy chief minister of the state at that point of time. He was also there in the programme. Some inauguration of new court building or whatever it was. The inevitable accusation came at the end of the thing saying that… “of course we have done this we have new building, the government was generous enough to grant so much of money, new building, new court, all kinds of tamasha“. And the inevitable accusation: but unfortunately courts take long time to decide issues. I appeal to the chief justice to take measures to expedite the judicial process.So I had to briskly respond – this was a public forum, people were watching me. So then in my turn I told Mr so and so, Mr minister – I don’t want to name the person – Mr minister, just take the figures. What was the total number of manpower employed by your state in 1955 when the state of Kerala came into existence in the bureaucracy, starting from the chief secretary to the last clerk, and what was the population of Kerala at that point of time? And what was the total number of judicial officers, starting from the chief justice to the last magistrate? Take the current figures, compare. What is the ratio? The answer of course, I’m sure all of you must be knowing, the budgetary allocation in any state in favour of judiciary does not exceed 2%. Some states it’s as low as .75% of the budget, total budget outlay. But the sanctioning of more money itself will not directly solve the problem. There are various other factors which, it requires a whole debate. I can talk about it for days together. But then the starting point is there.MKV: So the quality problem is also a quantity problem.JC: There are so many things now. The first thing is this. See the number of courts is not sufficient. What was the Indian population in 1950? About 40 crores? And what is our population today?And how are we going to handle this? Plus the number of appeals available in this country. I no other country this many appeals are available. For example the simple matter like 139 Negotiable Instruments Act – from the magistrate to the district court to the high court, eventually people add up in the Supreme Court. And, this… the scrutiny of a simple matter like this I don’t think is really necessary. If it’s really necessary there is something radically wrong with the efficiency of the system at every level. But something has to be done. It requires some serious debate about it.MKV: Generally I think judges in developing countries are five times more than IndiaJC: Definitely. Some of these countries, the percentage is much higher.