India’s apex institutions are under threat: Justice Chemaleswar


by Tamanna Inamdaar

Justice Jasti Chelameswar may have retired as the second-most senior judge of the nation’s highest court in June, but his zeal to uphold democracy shows no signs of abating.

The firebrand jurist was one of the four Supreme Court judges that held a press conference in January to express concerns about then Chief Justice of India Justice Dipak Misra and the lack of transparency in the court’s functioning—a first for the apex court. The concerns, he said, were about a key institution in crisis.

“They thought I had a personal agenda,” he told BloombergQuint in a freewheeling chat. “So, why is this happening in the CBI and RBI?”

Justice Chelameswar was referring to controversies involving two of India’s apex institutions—the Reserve Bank of India and the Central Bureau of Investigation. While officials of the central bank and the Finance Ministry have sparred verbally over issues relating to RBI’s functioning and its limits, the director and special director of the premier investigating agency have been sent on leave over graft allegations.

When asked what the conference achieved, Justice Chelameswar said: “At least people debate such things now.”

He, however, refused to reveal the sequence of events leading to the conference. “The factual details, the blow-by-blow accounts will come later.”

Looking back, do you think the Jan. 12 press conference achieved the purpose you had hoped for?

I can’t say it achieved. Nothing happens in one day. Indian didn’t get independence the day the Congress party was formed by (Allan Octavian) Hume. It was a long struggle. Similarly, nothing concrete would happen overnight. It was a move which we believed was required to put the system in a better condition. It will take longer time.

Have you seen wheels set in motion as a result of that press conference?

I do see.

Could you elaborate?

I could, but the question isn’t elaboration. At least people debate about these things. Till then people were never debating these things. The country is debating about it. All kinds of arguments are made, both in support or against. A lot of people supported our move. Equally, a good number of people condemned us. But then, the debate goes on. What is important in a democracy is that a debate goes on, on an issue. To that extent it was a movement.

Did you at any point wonder why you took that decision? (to hold a press conference)

No, I never did. I’m not a child to take an impulsive decision. I don’t think of the four of us in the group, anyone is a child and not understanding what was happening, what we were doing.

What was the key reason that put you in a situation where you had to go to the public?

We tried all possible alternatives for putting things in order. Our efforts failed to put things in order, at least what we believed to be order, then we thought we owed a duty to the nation.

What was the biggest problem?

We released a letter that was written two months prior to that event indicating certain things.

Can you give us details?

This is one question I’m not going to answer in the immediate future. It requires some more time. The factual details, the blow-by-blow accounts will come later. At this juncture, going into those minute details is not going to help either the system or the individuals. Now a lot of people raised the questions. Unfortunately, from my point of view, one of the foremost lawyers of this country chose to see a personal agenda behind the press conference so far as I am concerned. What really baffled me is this: along with me there were three others. I had a personal agenda, I agree, for the sake of argument; but what about the others? Is it that they’re simply unable to see, or does it suit the convenient narrative? Because this system, perhaps in their view, is required to be protected. I don’t know for whose benefit.

Perhaps the comments you’re talking about also occurred because of a meeting with a political leader right after.

I am a free man. I can meet anybody.

Has there been this concern in your mind about people talking about a political influence behind your actions?

What people talk, with utmost respect to civil society, I’m not worried about. So long as my conscience is clear. A judge does not become civilly dead. He still has contacts, he has his own acquaintances, friends, relations. Certainly, a judge is required to maintain a certain degree of aloofness. That aloofness is to be judged from the work and judgments he is writing—not from who he’s dining with or whose marriage he’s attending. Even there, judges are required to be extra careful that they don’t attend private functions and residences of established criminals. Something like that. I met a politician here and there. Tell me which judge never met a politician in this country. I had a political affiliation. When judges, advocates are invited, a particular form is given. We are required to fill in the details about various things. Experience, income details and so on. And one of the columns is political affiliation. I am one of the few judges who declared my political affiliation. It’s a matter of record. I can’t wish away my past. I am sure civil society knows which judge has which association with which party. But how many of them declare? Everybody says “ No, no, we don’t have anything.”

That press conference put a sharp focus on institutions in this country. Fast forward to the present day and we have seen in the short span of one year, this messy situation with the CBI. We have seen a fairly public spat between the government and the RBI. There are many who say institutions are under threat today. Would you concur?

Why don’t you pose this question to those who criticised us? Saying that why couldn’t these judges settle things internally? Why are you asking me today? If the highest court of this country, a constitutional organ, is disturbed in its functioning, then why talk about other organisations that aren’t constitutional organisations? Their status is slightly lesser than constitutional. CBI isn’t even a statutory organisation. It’s a mythical beast. God alone knows what are its legal structures. In fact, there’s a judgment of the Gauhati High Court saying it has no statutory backing. The appeal is pending. The matter is still not decided by the court. I think these are matters which should be decided on priority basis. Nobody wants these things to be decided. These things, undecided, give a lot of scope for speculation. The result is all this.

You believe that institutions are under threat today?

Yes, of course. What’s happening in the CBI? What’s happening in the Reserve Bank (of India)? Apart from their legal status, are they not important institutions in the governance of this country? When we held the press conference there were people, great people, learned intellectuals, who believed that I had a personal agenda. So why is it happening in CBI? Why is it happening in the RBI?

The Supreme Court has decided that dates of the Ayodhya title suit will be announced in Jan. 2019. There’s chorus that supports an ordinance to be brought in. A Member of Parliament of the BJP says that he will move a private member’s bill. Do you think this raises question about those who say they have faith in the judiciary?

This is not a problem which arose today. Whenever there is something which has popular support, even of limited range, this problem arises. What happened in the Cauvery dispute? What happened in the Bihar river dispute? The concerned legislature passed enactments, nullifying the settlements. In Bihar water dispute, when Haryana legislature passed a law by nullifying the settlement, there was a presidential reference on whether such legislation should be made. It’s pending in the Supreme Court for more than 10 years. It’s not decided. Somebody was saying what happened to Jalikattu. How many people denounced the judgment? People think that (by) mustering the support of a section of the population, they can defy the judgment. The judgment on jurisprudence can be debated academically and that’s different matter. All of us are responsible for it. All political parties take a convenient stand whenever it suits them.

What happened in the Aadhaar case? Aadhaar scheme was propounded by the previous regime and this regime continues it. When it was challenged, a specific stand was taken. The challenge is on grounds that Aadhaar is likely to interfere with fundamental rights of citizens of this country. When the matter was listed before the bench, the Attorney General who is the voice of government, took a fundamental stand that there’s no fundamental right of privacy in Indian Constitution. Then we had to refer the matter to a larger bench because there are certain stray observations in one of the earlier judgments. At the end of it, when the judgment was delivered every political party, present ruling party, past ruling party said that “we stand vindicated”, ‘We supported the fundamental right’. “Nobody supported it.” They took a clear legal stand. They take their stand conveniently depending on what they believe to be suited for electoral advantage.

There was praises for the Supreme Court in recent months because of verdicts in the Sabarimala, Adultery, Section 377 cases. All under the same Chief Justice that your press conference questioned.

You can draw your own inferences on it. It depends on the Supreme Court. The points of view, whether a particular judgement is progressive or retrograde, is an opinion. What you believe to be a progressive judgement can be a retrograde judgement for somebody else. Eventually the job of judge is to determine a case which is before him and with accordance with the law as he understands it. It is the press, media and civil society which attaches tags to it. On one of my judgments, everybody came down very heavily saying that it was most retrograde judgement of the SC which was the Rajbala judgement. Well, it was their opinion.

What is the solution for the large number of cases stuck in the Indian judicial system?

It requires a full-scale debate of how to handle it. No stakeholder is interested in holding a debate on it. Everybody is interested in pointing out about the pendency and time frames taken. Let there be proper debate on it. Let all the stakeholders be invited. Judges, legislators and civil society. I can talk about it for one full day with experience as a judge, CJI to HC and SC. I can a give lot of inputs on what’s the problem and some possible solutions. In just two minutes, we can’t address this problem.

What was one of the most challenging cases you faced over your career?

Intellectually, there are a couple of judgments. It’s a less-debated and a less-known judgment. One was the Assam Parliament Secretaries Act which was challenged in High Court and then it came to Supreme Court. A lot of states have this practice. There’s a constitutional amendment which prohibits the enhancement of strength of cabinets beyond a particular proportion to the legislative assembly or parliament strength. There were political problems. In a bid to get over that amendment the legislature resorted to a practice of appointing parliamentary secretaries under a law. That law was challenged. The matter came before me and we held such laws as unconstitutional. Intellectually I had to do a lot of homework before I wrote that judgment. It didn’t attract that much attention from media because there was not much of “masala” in it. NJAC (National Judicial Appointments Commission) had a lot of “masala”, the whole press was covering it. Privacy, too, a had a lot of “masala”.

What is your next innings, post retirement? Would you consider politics?

Talking about electoral politics, I’m not going to contest any elections. All this discussion is politics. If this is politics, then I’m into politics but not in terms of elections.

Article first published on BloombergQuint.

Tammana Inamdaar is senior editor and lead anchor of BloombergQuint

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