Judges are holders of public office, they ought to be subject to public scrutiny: Justice Chelameswar

Friday was the last day in office of a man who has become, arguably, India’s most controversial Supreme Court judge. Jasti Chelameswar, 64 (he turns 65 on Saturday June 23), was the only judge to dissent when the Supreme Court scrapped the government’s National Judicial Appointments Commission law, which replaced the older system of a collegiums of judges appointing judges to the higher judiciary with a commission. He was also one of four judges who, earlier this year, took on Chief Justice of India Dipak Misra for what they saw as inadequacies in the way he was administering the court and allocating cases. In an interview with Hindustan Times’s Ashok Bagriya and Bhadra Sinha, Chelameswar pulled no punches, and spoke of issues from nepotism, the chief justice’s office, and the role of the government. Edited excerpts:

You’ve been a judge for 21 years. June 22 is your last day as a judge. When you look back, how do you see your term as a judge and what cases have been close to you?

During the last 21 years lot of events took place and some of them did touch me, in the sense that I had to deal with the legal implications of those events as a judge. (The) NJAC case (did) for more than one reason – it will stay with me always – and its become a component of me as a judge. People will always refer to me as a dissenting judge. Apart from public perception, there is one important case that I dealt with – I had the opportunity to deal with the validity of a constitutional amendment (NJAC case ). I take pride in the fact that of the 240 judges in the Supreme Court since its inception, only 50 judges have dealt an issue like this and I am one of them.

You will also be remembered because on January 12, you along with three other top judges of the court took an unprecedented step. You called a press conference; that has never happened in the history of Indian judiciary. What triggered the event?

There were lot of things which according to us were not right in the Supreme Court and not in the interest of the people of this country. We made our attempts to set the things right according to our perception of what is wrong and what is right in that context. Since we concluded that we were not able to set the things right, we decide to inform the nation. We didn’t want anybody to blame us a decade or two later that these fellows did not discharge their duties. After the press conference we become rebels and were even branded as a gang of four. The press conference was called extraordinary; yes it was extraordinary. In retrospect also, I think what we did on January 12 was right.

Have things changed in the Supreme Court of India after the press conference?

There was an undertone in our press conference that consultative process in matters affecting the judiciary were not taking place and it’s for the people to see and judge if things have changed after it or not.

Has the extraordinary press conference achieved the results that it intended?

The press conference has not achieved in the complete sense the result it should have, but it certainly has created awareness in this country that this institution is also required to be protected and its activities should be assessed periodically. That awareness is certainly there today.

The January 12 press conference has been criticised as a break from tradition and also a violation of guidelines for judicial conduct, what do you have to say on it?

A lot of unprecedented things have happened in the Supreme Court in the recent past but they have never been criticised. Tell me, has there been any precedent in the history of this court that a constitution bench was constituted at 3:30 in the afternoon, with seven judges and afterwards two chairs were removed from the court and only five judges sat? And all those who question the press conference, why do not they ask if what happened then? Wasn’t it unprecedented? (In the Prasad medical college case, where allegations of corruption were levelled against judges and a bench led by Justice Chelameswar ordered setting up of a 5 judge bench to look into the allegations. But within hours, the Chief Justice of India set up another bench and overturned the order of the two-judge bench, saying the Chief Justice had the sole prerogative of setting up a bench and allocating matters. According to Chelameswar, this bench set up by the chief justice initially had seven judges, which then became five)

In the press conference, it was pointed out by you and other judges that all is not well in the Supreme Court and particularly the office of the Chief Justice of India. Do you think time has come to relook at the office of the Chief Justice of India in terms of the powers it has?

It’s not the question of the office of the Chief Justice of India, every public office in a democratic society and every holder of public office is subject to intense public scrutiny. Day in and day out, the civil society and press talk about the performance of ministers, governors and sometimes in not very complimentary terms. Even judges are public office holders and they perform to their strengths and prejudices. They ought to be subject to public scrutiny. In a democracy, no public office holder is beyond scrutiny.

The Supreme Court is generally criticised for adopting a non transparent procedure in appointment of judges. What is your take on the issue?

We are not adopting a fair, rational and transparent procedure in appointing judges. In the context of the appointment of Supreme Court/High Court judges, Parliament made attempt to change it; the attempt failed. The point is that the old system is the law now; but even that system is required to function in the interest of the people of this country and anything that is not rational and transparent is not in the interest of the people of this country. When you choose a person as a judge you need to see a certain procedure has to be followed. Is the selection process as rational as it should be? Are we adopting a procedure that is transparent?.

The government of India first sat on the recommendation of elevation justice KM Joseph as judge of the Supreme Court and then months later sent back the file asking the collegium to reconsider the appointment. Do you think that the government is sabotaging the appointment?

I don’t want to comment on appointment of justice Joseph as the matter is under consideration, my opinion on the matter is on record. But on the issue of government sitting on recommendations of the collegium, every government has done it. These things have always happened.

How should decision making happen in the Supreme Court?

The idea of collegium, a multi-member body, was mooted 20 years back. The idea of consultative process is inherent and that is democracy. Why not have a Prime Minister alone? Why (is there) a cabinet? Because the constitution framers in their wisdom believed that in a democratic system, plurality of opinions and interaction of minds will yield greater wisdom. Why is the same principle not incorporated in the context of the consultation of the Chief Justice of India?. In fact it was justice (PN) Bhagwati who wrote for the first time saying that there is no guarantee that the Chief Justice of India will always protect the institution. If I say this, immediately somebody will interpret as a personal feud between me and Justice (Dipak) Misra (the current Chief Justice). Bhagwati wrote this even before I and Justice Misra were born in the judiciary. I wrote to the former Chief Justice of India (Justice Thakur) expressing my dissent at the non–transparent manner of the functioning of the collegium, but not much has changed since then.

Should the outgoing Chief Jutsice of India have a singular say in the appointment of a new Chief Justice of India or there should be some check and balance on him?

The outgoing Chief Justice of India should have the power to recommend the name of the new chief justice, but exercise the power bona fide – he/she has to give reasons. The tradition is that the senior most is recommended as the new CJI, but for any reason, if the CJI departs from the tradition he should have the freedom to do so provided he records his/ her reasons (saying), “For this reason I consider the senior most judge as unfit to become the CJI” . There is nothing wrong in CJI recommending the name, somebody has to do it.

A few years back, a former chief Justice said that judges must be shielded from the lure of post-retirement government jobs. Do you think that there should be some cooling off period for judges before they accept a post-retirement job.

The accusation that governments dangle post-retirement jobs in tribunals and other offices to judges and subtly maneuver the courts has always been made and it needs to be guarded against. It is for the public to decide if a particular appointment is made on genuine assessment of the persons suitability or for certain extraneous reasons of the government. I can talk for myself that I have decided not take any post-retirement job.

Please share your views on the charges of nepotism in judiciary, in the sense that there is a general perception that sons and daughters or relatives of judges stand a better chance of becoming judges?

In some cases people who are related to former judges reach the High Court or Supreme Court, that by itself does not indicate anything is wrong. If a judge’s son/daughter is suitable and otherwise competent, why should he/she not become a judge? Should they be barred merely because his/her father was a judge ? The question is, “Is the person being made a judge because of his/her abilities or for being related to a judge”. There have been cases both ways. In some case it’s only because of the relationship that it happened and in more cases these are outstanding people (who are being appointed).

Is it okay to have judges in the Supreme Court who have a political ideology?

I would prefer a judge with some political ideology to a judge who keeps changing his ideology with time. At least you know what the ideology of the judge is.