If somebody wants to abuse me, it is his liberty; I had taken an oath to protect his liberty, Justice Chelameswar [Video]

Varun Chirumamilla August 26 2018

Justice Jasti Chelameswar, who retired as the second most senior Judge of the Supreme Court on June 22, probably won more admirers and critics than any other judge in recent history.

He presided over an unprecedented press conference in which four sitting judges of the Supreme Court spoke to the national media about problems that centered around the lack of transparency on the administrative side of the Supreme Court.

Justice Chelameswar stopped attending meetings of the Collegium for a while out of sheer frustration. Ulterior motives were attributed to his defiance, but these have not fazed him.

Free speech and transparency have been centerpieces of many of his more notable judgments, including his famous dissenting opinion in the NJAC case.

That the government cannot arrest you on a whim, and rely on a post on social media to justify the same is part of Justice Chelameswar’s legacy through the Section 66A judgment.

The man himself spoke to Varun Chirumamilla of Bar & Bench on issues ranging from how he came into the profession, to contempt, to the transfer of judges.

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Below are the excerpts.

Your father was a lawyer in the district courts. Did that have any bearing on your decision to pursue law?

My father didn’t really practice for a long time. Actually, it was my maternal grandfather, who was a successful lawyer in Masulipatam. He was a local legend those days. It was his influence more than my father’s.

My father was in fact totally against my becoming a lawyer.

Why was that?

I don’t know. In fact, he didn’t speak to me for one full year after I joined the law college.

Can you tell us a little bit about your early years as a lawyer, fresh out of law school?

I started my career at Dr. Bhimaraju’s office. He was a public prosecutor in those days. He lived in the lane next to my house. By an accident or fate, my career started and ended with criminal law.

I started my career in the Public Prosecutor’s office and the last two judgments I penned in the Supreme Court pertained to criminal cases.

Dr Bhimaraju laid down the office sometime after I joined him. He had suffered a heart attack.

Then I shifted to the late Shri Raja Rao’s office. He was a Government Pleader. I was with him for about three and a half years. That is how my professional career began.

How did those early days treat you? Were you making enough to make ends meet?

For any average lawyer in this country, the early days are the same. I was very enthusiastic. Financially, I did not need money from the profession, at that point of time. I could survive without any income from the profession.

A lot of lawyers romanticise the good old days. What do you think has changed?

I wouldn’t like to add the adjective ‘good’ or ‘bad old days’. But the days were certainly different. One could write a whole thesis on how and why things changed. It cannot be explained in one line.

Broadly speaking, I can tell you this. It was a profession those days, somehow I have an uncomfortable feeling that it is becoming a trade now.

Why would you say that?

Because of the amount of money that is flowing into the profession.

I am not against anybody making money. [But] there is a huge disparity between very successful lawyers, and not very successful lawyers.

Some of these very successful lawyers in Delhi make more money than successful film stars, Amitabh Bachchan and Rajinikanth. Most of the other lawyers hardly make a 100th of that.

There are people who are very competent but still don’t make much money. Why it happens is a different story. I am not on that.

But when I hear that someone is charging a crore of rupees per day, I don’t feel very pleased about it. The party who is paying them may be willing to pay them, I am not quarreling with that, or objecting to anyone making money.

But at that level, it ceases to be a profession according to me. Traditionally, barristers never stipulated a fee. Whatever the client put in their pouch, they would take.

But things have changed. Whether they were good old days or bad old days, is a matter of opinion. I don’t want to make a judgment on that.

Were you always inclined towards becoming a judge?

No, I never planned to become a judge. I just wanted to be a lawyer. Judgeship was an accident. When the invitation came in 1997, I consulted a couple of elders. One of them advised that it was a call of duty and that I must take it up. I accepted.

Did you ever seriously consider not accepting the position?

I was not very sure whether I should accept [judgeship]. First of all, by the standards of South India, I was relatively young when the offer came. I was 44, and honestly, I didn’t make big money in the profession back then. Those days, the kind of money that is around today wasn’t. I used to make just enough to survive.

I am sure I would have made a little bit more money if I didn’t accept the judgeship. I really didn’t know how it would be. But as I told you, I consulted a couple of seniors and decided to accept.

Could you tell us a little bit about your time as the Chief Justice of the Gauhati and Kerala High Courts? 

I had a very pleasant time at both the places. I had no difficulty at both High Courts. One problem in this country is when you become a judge in your own parent High Court, you are assessed not completely on the basis of your performance.

A lot of other factors go into making an assessment of how good or how bad a judge is.

You have your friends, and you have people who are perhaps not very appreciative of you and who suspect that you slipped into the office for extraneous reasons.

Everybody faces such speculation, even those that are considered greats. I don’t know whether you aware of it but when Justice Krishna Iyer became a judge of the Supreme Court, it was not received very well. People thought that he was smuggled into the Supreme Court because of his political philosophy.

Do you agree with the philosophy that the Chief Justice of a High Court should not be from the same State?

I don’t agree with the philosophy part of it. You asked me how my experience was? I said I had a very good and pleasant time.

But I don’t agree that it is a good policy. This transfer policy in my view simply has not helped the system or the people.

The average tenure of a Chief Justice of a High Court in this country is about a year. I was an exception, I served as Chief Justice for four and a half years.

Moving to another High Court means having to become acquainted with a totally different atmosphere. To become acquainted with the names of the judges, and the local practices, takes time.

By the time a Chief Justice does all these things, he is almost on the verge of retirement, or about to pack his bags and push off either to the Supreme Court or home.  That is one problem.

When this transfer policy was not there, a judge would become the Chief Justice in his own parent High Court if he had sufficiently long service and as and when he became the senior-most puisne judge.

There are very rare exceptions, where the seniormost judge was not made the Chief Justice. Now what happens is that you have 3-4 Chief Justices simultaneously from some High Courts. Some High Courts get no representation at all.

All this is because of the transfer policy. When there are two or three Chief Justices from a High Court, all of them come into contention for elevation to the Supreme Court.

In this wonderful system, hardly anyone asks what judgment a particular judge wrote, or how good their judgments were. Seniority, which is essentially a bureaucratic norm, has crept into the judiciary, even at the highest level.

This has created a lot of problems. I will tell of about the latest deadlock. Until the current Acting Chief Justice of the Bombay High Court moves out, nobody can be posted to the Bombay High Court. This is because she is the seniormost in all India seniority. Nobody can be posted to Bombay because they would be junior to her in all India seniority.

That is another norm. We have not yet come to the stage where juniors are made Chief Justices over seniors. All this has happened because of the transfer policy. At least until I was there, this was a problem and we couldn’t send anyone to Bombay.

You were a part of the Collegium for a considerable period of time. What exactly happens behind those doors? How do you decide if someone is fit to become a Judge or not?

Why don’t you ask the sitting judges of the Supreme Court? Why are you asking me today?

A lot of desirable and undesirable things happen. A clerical exercise which revolves around seniority occurs.

The appointment of judges to High Courts, and to the Supreme Court are two different matters.

When it comes to appointing judges to the Supreme Court, if the system really wants it, there is the possibility of having some objective criteria. ‘What judgments did a judge author? How sound is his jurisprudential background?‘ These are matters that can be verified.

In a federal democratic society, every State legitimately expects some representation, more so when you have a Supreme Court with 31 judges. When you had a Supreme Court with seven judges, the question of regional representation did not arise. With 31 seats, every State expects representation. Subject to these expectations, the suitability of an individual is the next criterion.

Are you saying that sometimes representation takes precedence over the suitability of an individual?

Yes, it does. I am already on record. In a system run by human beings, there will always be aberrations. No system is perfect. These rules have been invoked conveniently.

There is an old saying which I have been hearing since my time at the Bar of the Andhra Pradesh High Court. It says ‘Show me the man and I will show you the rule’.

‘If I want to elevate somebody, I will use the rule of all India seniority, if I don’t want to I will invoke representation.’

What I say is we require a more transparent system. Let us record reasons. You can’t simply say that because I don’t like someone’s face, he is not fit to be elevated. Why? What is the reason someone is fit or unfit for elevation?

A person who is giving an opinion that Chelameswar is not fit to become a judge of the High Court or Supreme Court may be right. But there must be a reason. Why do you think so?

‘Chelameswar’s knowledge of the law is deficient or speaks bad English, or he dresses poorly, or his integrity is questionable.’

Integrity being questionable is a very valid consideration, provided you can produce some tangible material. If you want to condemn somebody you can say, ‘I doubt his integrity’. This is a favourite pastime for those that want to create mischief.

In this country, because of what is happening all around, the moment you say ‘I doubt someone’s integrity’, it spreads like wildfire.

My point is if you suspect someone’s integrity, be brave enough to put it on record and give some reasons. I am not asking for 100 per cent proof, but some material to indicate that your doubt is justifiable.

Even then should it be rejected or should the fact be verified is the next question. At least it should be recorded.

Supreeme Court Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph held a press conference against CJI Dipak Misra

You gave a few meetings of the Collegium a miss. Why?

Not a miss, I communicated this officially to the Chief Justice. The reason was that decisions were being taken without any discussion. Somebody says, ‘I don’t like this man, I want him to be transferred’. I asked why? They don’t give reasons, and nobody talks about it. It is like I don’t want to offend you, therefore, I agree with you.

This is no fair system. There is no point in attending such meetings if it is only a matter of adjustment.

You started attending after a while. Were your concerns addressed?

At least to some extent.

You have raised a lot of concerns about the health of the judiciary and the way it functions. What are the solutions?

It all depends on what issues you are talking about. If you want a one-line answer, the solution is transparency. What was that great dictum of Justice PN Bhagwati? Every action of the government should be informed with reason. That is what I am also saying.

Merely because it is a judicial office, it cannot have different standards. It is a public office. If you expect the government and every officer of the government to take decisions on a rational basis, why should the judiciary be any different?

On the judicial side, at least you give reasons. Your reasons may be right or wrong. The higher court may approve or disapprove. If you are sitting in the Supreme Court, your appeals are exhausted. Whether we are infallible or not, we are final there. But lower courts at least record reasons. There is a possibility of verifying and there is an appeal available.

However, on the administrative side [of Supreme Court], there is no appeal available. Therefore, it requires some amount of transparency.

I’ll be a little more specific about that. Do you think that the Supreme Court should function purely as a Constitutional Court?

I believe so. I have mentioned this more than once. You must know about Section 138 of the Negotiable Instruments Act. Do you know how many tiers of scrutiny those matters go through? Four.

Is it really necessary? Was this the intention of the Parliament in making cheque bouncing an offence? The whole idea was that a civil suit will take a long time, and that criminal prosecution would resolve the issue at an early date. But now what is happening is that matters are dragging on for 20 years.

Whenever such matters came before me at the Supreme Court, parties eventually sense the mood of the judge. If they think there are losing and the lawyer is convinced, he would immediately come forward and offer to settle, but would ask that the punishment part of it be set aside.

I used to say, ‘Alright you settle, but you must compensate the system for the time you have wasted, by making an additional payment to the Legal Services Authority or some such organization’. People are simply taking advantage of the system and the number of appeals available.

Is it really necessary that the Supreme Court should deal with 138 matters? What is the guarantee the Supreme Court decision is right? If there were to be an appellate court, the parties would try there again.

Why can’t they end it at the High Court?

The Supreme Court, in my view, should confine itself to Constitutional interpretation.

In a letter addressed to the CJI you mentioned the bonhomie that exists between the executive and the Judiciary, citing the example of Justice Dinesh Maheshwari. Has this been the only time it happened?

No. Let us be fair to all concerned. It is not the only time. There have always been instances in history, not just in this country but elsewhere as well.

Are there any other instances in India that you can cite?

It is on record. Justice Goswami recorded that an acting President of India made a mention of a case to the Chief Justice of India.

Of late the Executive seems to have a blatant disregard for orders of the judiciary. Is this a recent phenomenon? Or has it been happening?

Whenever the Executive had absolute majority, it has happened. You have not seen the seventies. I have. Absolute majorities for the Executive have always emboldened them to ride roughshod over the judiciary. It has always happened.

In today’s scenario what seems to be happening is that orders are being passed which are not being implemented, and nothing seems to be happening as a consequence of that.

It did not start today. There is another way of looking at it. Just think it over.  According to the statistics, how many contempt cases were profiled at the Madras High Court for example? Or Bombay or Calcutta? Then look at statistics in a decade wise progression. There is a huge boom in contempt cases. Every contempt case only signifies that the government is violating orders. Therefore, it is not a recent phenomenon, it has always happened.

Given the fact this government has an absolute majority, and orders are not being implemented, is it not time for the Supreme Court to put its foot down and do something about this? Can they do something about it?

Why don’t you ask the Supreme Court judges? I am a retired judge; what difference does my opinion make? If the order of the highest court, or the High Court or for that matter any court, is not honoured, then you are doing damage to the Constitution.

Many litigating parties may believe that a particular judgment is not right. Parties including the government are entitled to believe so, but, then the question is – is it an appealable order? If it is an appealable order, test it, carry an appeal, then convince the appellate court that the order is not sustainable, not in accordance with law and get it corrected.

But, if the order has become final, there is no Constitutional justification for ignoring the order. That would be the end of Constitutional governance.

The Supreme Court has historically maintained a sort of omerta, at least as far as the judges are concerned, in talking about the issues plaguing the judiciary while still in office. You were part of one such episode which broke this trend so to speak, Can you tell us a little bit about that?

I believe silence is not an option when things are going wrong. I still believe so. Of course, there are a lot of people, vulnerable people who believed otherwise. It is their opinion, I am entitled to my views. I suppose that is democracy. It is for the future generations to judge who is right, whose view is more sound, and whose view is more beneficial at large.

There is a perception that the Supreme Court is falling prey to sensationalism, and giving priority to matters that are in the news. The BCCI matter is one that comes to mind. Do you think this ought to change?

This is a partial truth. There is some justification for this accusation. I know as a matter of record there were about 50-55 matters, pending reference to Constitution benches. I don’t know the latest figures, but I am sure even today there must be 30-35.

More esoteric things take precedence over these matters.

Given the attitude of the current political Executive, do you still stand by the dissenting judgment you penned in the NJAC order?

I stand by every word of what I wrote. The validity of a Constitutional amendment is one thing. To examine whether a decision taken pursuant to a certain Constitutional provision is being taken in good faith or not is a different matter altogether.

There can be complaints that a particular decision is not taken in good faith, or not strictly in accordance with the stipulations under the law. That doesn’t mean the law is bad. The implementation might be bad. I stand by every word of what I wrote.

Given the existing laws, do you ever see a judge of a Constitutional court being impeached in this country?

It has nothing to do with the law, it has to do with the people who operate the system. In a lighter vein, I received a WhatsApp message yesterday. If you weigh 100 kg, you would weigh only 64 kg on Mars, and 16 kg on the moon. So don’t think you are obese, you are just on the wrong planet.

You get a system that you deserve, that’s how democracies work. They depend on the level of maturity of the players in the system.

Do you think that the immunity afforded to judges under the Veeraswami judgment should be stripped?

No, I don’t believe so. If the immunity was not in place, there would be a lot of frivolous complaints. No judge would be able to perform his duties. That the verdict delivered in Veerswami’s case was wrongly applied or ignored in a particular case is no justification for getting rid of it.

Look at the dangers. If the political Executive is not happy with a judge and the immunity did not exist, they could create lot of trouble for the judge.

Some senior counsel have come out openly in criticism of the courts and their judgments. Even on social media, there are a lot of abusive posts criticizing individual judges and yet contempt proceedings aren’t being initiated. Why is this?

The amount of abuse I have received on social media in the last six months, I don’t think anyone else has. You may not have read the posts, but I have.

I am one of the two judges who struck down section 66A of the Information Technology Act. The judgment was ultimately penned by brother Nariman, but I presided over the Bench and we decided amongst ourselves that he would write it. I agreed with him and signed.

That is what is protecting all those people who abuse me today. Notwithstanding some abuse of the liberty, freedom of speech is essential for the survival of a democracy.

It is a very minor price that we pay for retaining our larger liberties.

There is a famous anecdote. When Oliver Cromwell was lord protector of England, some scurrilous material was published about him. This was brought to his attention by a friend who advised him that he take action. Cromwell was said to have replied saying, “My government is here to stay. I have nothing to worry about a paper shot. Let him have the paper and I will have the government.”

I think that is a healthy attitude to have in a democracy. If somebody wants to abuse, let him abuse; what is going to happen? People have abused me; somebody has carried out a relentless campaign over the last six months, attributing all kinds of motives to my press conference.

I completed my tenure, I still get my pension and there are still a lot of people who respect me in this country. If somebody wants to abuse, it is his liberty. I had taken an oath to protect his liberty and I protected it.

But does it not cause a dent to the majesty of the Court in some way?

The majesty of the Court depends on the quality of service that it renders to the people. It depends on the quality of the people that man it. If a good number of people believe what I did was right, it only adds to the majesty of the Court.

On the other hand, if a lot of people think what I did was not right, then it would dent the majesty of the Court. Now what people are thinking, I don’t know. It is for you to make an assessment. So far as I am concerned, as an actor, I went by the dictates of my conscience and performed my duty.

Are you in favour of increasing the retirement age of judges of the High Court and Supreme Court?

In one way it is good, provided they are of continued utility to the system. Insofar as subordinate judges are concerned, an assessment as to their performance is required to be made at 50, 55 and 58, as to whether they should continue or be compulsorily retired. In the assessment, the test is their continued utility to the system.

As long as such an assessment is made, it is fine.

Is pendency attributable to the fact that most important issues seem to have decisions supporting both sides of the argument?

This is what happens with a poly-vocal Supreme Court. If the Supreme Court sits en banc in every case, this kind of problem would not arise. There are various other factors that contribute to pendency. This is only one factor. But this can be addressed simply by the Supreme Court dealing with only Constitutional matters.

This is something that is not restricted only to the Supreme Court. It happens at High Courts as well despite that fact that precedents which exist are cited before them.

That is why I said references to larger benches are not taken up for decades. That leads to all sorts of confusion. I will give you one example. There is an issue surrounding mineral rights taxation in this country. There are a series of judgments pertaining to the authority of the Parliament and State legislatures to deal with the matter, right from 1961 onwards.

A reference was made to a nine-judge Bench of the Supreme Court a few years back, but it is yet to be heard. Naturally, a number of existing judgments’ create a lawyer’s paradise, with judgments supporting both views.

The issue which we are discussing has huge economic implications for this nation and the States, and their authority or lack of authority to collect tax. I don’t know whether it is a wise judicial policy to keep such matters pending for so long.

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