The Judicial Estate of Justice Chelameswar

Bar & Bench May 24 2018

Santhosh Krishnan

He insisted on a syntax for presentation. Miscellaneous cases commenced with his abbreviated reading of a case note, stapled to the brief. Then proceeded:

What are the facts? What did the Courts decide? Why must we interfere?

The method was not particularly formulaic, though sometimes enforced with ferocity. Lawyers not savvy with the discipline of answering the Judge’s question forthwith were peremptorily ignored. Insensitively, there were murmurs equating this sporadic harshness with his hardness of hearing.

His disdain of fools was, however, no rule of law; I had more than one occasion to address him and peaceably depart. Once a counsel was disapprovingly asked:

“You have lost twice on facts! Why are you here?”

Young lawyer that he was, he was indomitable. He announced to the Court that it was his first appearance in the Court. Surely, the Court could afford him a hearing beyond such questions? Next in line, witness to this gem, I sat unhappily. With Murphy’s law, I had suffered not two but three concurrent adverse orders. Came the inevitable:

“Mister, are these really the type of cases we should be deciding?”

I blundered unwittingly, “But my Lord, I have not yet gotten better cases to deal with?”

He had a softness for such self-evident sadness. Both of us, First Timer and Second Timer were cheerfully counselled that our cases were to be dismissed for the sake of a higher principle: “think of what this Court is reduced to doing!” The misadventures of novices encountering Justice Chelameswar are tragicomedies that deserve a book.

He had obvious but strange observations to make whilst hearing cases:

to decide the legality of your municipality’s orders, why are you at Supreme Court? Is your High Court not enough?”, or “how many courts are to apply themselves to see whether the FIR makes out an offence at this stage?” were sample fare at his court.

As the Court’s journeymen, we have a congenital misunderstanding. Our belief is that the Court mostly exists to hear Special Leave Petitions. As an invisible balance, most Judges who transcend to our highest court seem to become jurisdictionally jealous. They seem to be as anxious to dismiss our SLPs as we are, to file them. Dismayed with the misappropriation of the Court’s constitutional role, the Judge often asked:

“Why must we entertain this under Article 136?”

All answers to a dissatisfied rhetorical question are necessarily unsatisfactory. Consequences followed.

Messer Holdings Ltd v. Shyam Madanmohan Ruia & Ors. (2016) 11 SCC 484, illustrates his approach to the Court’s plague. After spending a lot of time explaining the useless perambulations undertaken by the parties, a tidy sum of 75 Lacs was imposed as costs to be paid “as compensation for the loss of judicial time of this country…” He clarified that the purpose of this compensation was so that:

“….the same may be utilised by the National Legal Services Authority to fund poor litigants to pursue their claims before this Court in deserving cases.”

The parties were represented by the best counsel. The murmurs were mistaken. He understood more than he heard.

He could not find a place in adjudicating some of the more momentous constitutional cases of the day. The institutional breakdown of the Court to Division Benches is the Constitution’s misfortune. A dissonant voice is the best method to mould principle in constitutional adjudication. He had such a voice, as we saw many years ago in Purno Sangma v. Pranab Mukherjee, (2013) 2 SCC 239.  His NJAC dissent (SCAORA v. UOI, (2016) 5 SCC 1) was spectacular not merely for its prophetic prose but its introspection. But the opportunities were not many.

Poignantly, he said:

“I always believed that there is a great way of doing small things, and there is a small way of doing great things.”

He stuck to the great way. His sense of writing is unparalleled in the Court’s modern times. His opinion in the Privacy Case (KA Puttuswamy v. UOI, (2017) 10 SCC 1) has the hallmark of rendering a concurrence worthy of being read as an authority. His other concurrence in Re: Justice CS Karnan, (2017) 7 SCC 1, was nothing less than necessary. He admitted with alacrity:

“we are only sad to point out that apart from the embarrassment that this entire episode has caused to the Indian judiciary, there are various other instances (mercifully which are less known to the public) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system.”

The brutality of honesty! He undertook badly required electoral reforms in Lok Prahari v. UOI (WP (C)No.784/2015 judgment dated 16.02.2018). His last judgment in Vinubhai Ranchhodbhai v. Rajivbhai & Ors., (Crim. Appeal No. 1529/2009, judgment dated 16.05.2018) spoke with justifiable anguish at our crumbling criminal justice system. The pen he brandished was formidable.

Judgments are meant to furnish reasons for a Court’s decisions.  From Appellate courts, they are also meant to be precedents for their ability to forecast and forge rules for a future day. His judgments embody this essence. His judicial estate will long be cherished. No forgetfulness of a future day can rob us of his contribution. He was meant to become a Judge of the Supreme Court.

The author practices at the Supreme Court and is an Advocate on Record.

 

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