Supreme Court’s ‘dissenting voice’ Justice Chelameswar retires today

A judge who came to be known as the “dissenter” of the Indian Judiciary, Justice Jasti Chelameswar officially retires as a Supreme Court judge today.

Justice Chelameswar’s last working day in the Supreme Court was on May 18, right before the Court closed for summer vacation. On his last day, he sat alongside Chief Justice of India Dipak Misra and Justice DY Chandrachud in the Chief Justice’s Court, in line with the tradition.

After some members of the Bar chose to bid adieu to Justice Chelameswar by paying their tributes to him in the open court, Justice Chelameswar exited the Court for the last time with folded hands and a smile.

Journey through Bar and Bench

Justice Chelameswar began his journey in the legal profession after graduating in law in 1976. He was designated a Senior Counsel in the year 1995 and in October of the same year, he was appointed as the Additional Advocate General for the state of Andhra Pradesh.

Then in June 1997, Justice Chelameswar was elevated as an additional judge of the Andhra Pradesh High Court, his parent High Court. After another two years, Justice Chelameswar was appointed a permanent judge of the Andhra Pradesh High Court in May 1999.

Eight years after serving at his parent high court, Justice Chelmeswar was elevated as the Chief Justice of the Gauhati High Court in May 2007. From Gauhati, he was transferred to take charge as the Chief Justice of Kerala High Court in March 2010. He was elevated as a judge of the Supreme Court on October 10, 2011, the same day current CJI Dipak Misra was elevated.

The inexplicable delay in Justice Chelameswar’s elevation as a Supreme Court judge is one of the chief reasons he retires as the second senior most judge, never having assumed the position of the Chief Justice of India.

The Legacy

During his time as a Supreme Court judge, Justice Chelameswar made headlines several times. During a tenure that lasted almost seven years, Justice Chelameswar passed many landmark judgments and registered his dissent in many matters. He leaves behind his quest to bring in transparency in judicial appointments and his strong stance in favour of Freedom of Expression as his legacy.

Unsurprisingly though, owing to his sole dissenting judgement in the National Judicial Appointments Commission (NJAC) case and in light of the unprecedented press conference of the four senior judges of the Supreme Court held on January 12 of this year, he will be remembered as the “dissenter” or the “voice of dissent of the Indian Judiciary”.

NJAC and Transparency in Judicial Appointments

Justice Chelameswar’s dissenting judgment in favour of NJAC and calling out the Collegium system for being “opaque” is arguably the judgement he will be most remembered for. Calling exclusion of the other two pillars of democracy from the appointment process of judges as “illogical”, Justice Chelameswar was the only one of the five-judge Bench to take a view in favour of the NJAC.

In his dissenting judgement in the NJAC case in October 2015, Justice Chelameswar opposed the Collegium system for lack of transparency expressing his disapproval of the system and said,

“The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India.”

Batting for transparency in appointment of judges, Justice Chelameswar, in his sole dissenting verdict, wrote,

“Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”

While the Collegium system was upheld by a 4:1 majority, Justice Chelameswar didn’t end his ‘fight’ for transparency. In September 2016, he wrote a three-page long letter to the then Chief Justice of India TS Thakur expressing his unwillingness to attend collegium meetings due to lack of transparency in Collegium resolutions and decisions.

This changed almost a year later, after Chief Justice Dipak Misra decided to make the Collegium decisions public by putting them up on the Supreme Court website.

The ‘Unprecedented Press Conference’

On the cold morning of January 12, 2018, four senior judges of the Supreme Court held a press conference. This press  conference of ‘rebel Judges’ was led by Justice Chelameswar and was essentially held to highlight that the administrative functioning of the top court “was not in order”.

With these judges telling the public that they feared that important cases were being assigned by the Chief Justice of India to preferential Benches, the rift in the Judiciary became public. The letter written by these four judges to the Chief Justice of India states,

“There have been instances when cases having far-reaching consequences for the nation and the institution have been assigned by the CJI selectively to Benches of their preference without any rational basis for such assignment.”

This press conference may have been criticised by various quarters of the legal fraternity, but the decision of CJI Misra to make the Roster public was arguably the result of the same. In an interview with veteran journalist Karan Thapar in April this year, Justice Chelameswar revealed a little more on the rationale behind the press conference.

“What compelled us to make it public is that despite our best efforts, we could not achieve what we thought would be the right solution to the problem.”

Comparison with late Justice HR Khanna

Justice Chelameswar may have earned the reputation of a non-conformist, a rebel or a dissenter, but his dedication to the institution and his courage also earned him praise from senior members of the Bar.

With Justice Chelameswar having rejected the invitation of the Supreme Court Bar Association’s invitation to his farewell function, members of the Bar chose to pay their tributes to Justice Chelameswar in open Court. On the eve of Justice Chelameswar’s last working day, former Law Minister Shanti Bhushan not only called Justice Chelameswar one of the greatest judges, but also drew a parallel between him and late Justice HR Khanna, who wrote the sole dissenting judgement in the infamous Habeas Corpus Case. Justice Khanna and Justice Chelameswar both retired from Court no. 2, never having assumed the post of Chief Justice of India.

“He (Justice HR Khanna) sat in courtroom 2 and people talk about him all the time. His portrait is here. I am sure yours will be here soon”, Bhushan said to Justice Chelameswar.

Regardless of all controversy, Justice Chelameswar was praised by the members of the Bar, on his last working day, for “upholding the ideals of the institution” and for his “contribution to democracy and the country”.

Faith in the Younger Generation

Speaking at an event held after his last working day, Justice Chelameswar thanked the younger members of the legal fraternity for standing by him.

“It was pointed out to me that over the last year and a half, I have undertaken to democratize the institution. It’s the younger generation that has stood by me. The established and acknowledged constitutional lawyers and jurists attacked me from every side”. 

He signed off with some advice to the younger generation.

“The established systems are such that any questioning will not be taken lightly. You are required to have courage and determination to fight the system if you want to bring about a good change.”