“Your smiles, silences and ‘Mmmms’ speak volumes”.
It was literally Devil’s Advocate v. Judge at the Constitution Club of India yesterday. Faced with a volley of questions by noted journalist Karan Thapar, sitting Supreme Court judge Justice Jasti Chelameswar responded on various issues faced by the Indian judiciary, particularly the Supreme Court.
In a conversation that lasted for an hour, Justice Chelameswar spoke about controversy surrounding allocation of cases in the Supreme Court, the master of roster power, the Memorandum of Procedure, the MCI case, the elevation of Justice KM Joseph, apprehensions about supersession of Justice Ranjan Gogoi, and judges talking to the media.
The event was organised by Harvard Club of India. Below is the transcript of the conversation.
Karan Thapar: Yours was the lone dissenting voice. Do you believe it was a serious error in striking down the NJAC?
Justice Jasti Chelameswar: I cannot comment on that judgment beyond what I wrote in my dissenting judgment. I could not agree with the majority opinion, since I don’t see it as the right view in law. Beyond that, what comment can I make on the judgment?
There is a wonderful quote from one of the professors at Harvard, Laurence Tribe, who wrote a wonderful book called American Constitutional Law. He said, “I do not consider the judgments of the Supreme Court to be synonymous with Constitutional truth, a court which held slaves to be non-persons…”
On Collegium system
KT: Would you agree that an audit of the Collegium system is necessary?
JJC: Yes. We live in a democratic society where periodic audit is always necessary to see whether we are progressing on the right lines or not.
KT: And the Collegium system has never been audited since it came into being?
JJC: That depends on your definition of “audit”.
KT: An attempt to assess whether it is promoting the rights of the people or whether it is producing judges who ought not to be chosen in the first place.
JJC: If you are making it as an absolute statement, then I beg to disagree with you. No system created by human beings can be perfect.
On Memorandum of Procedure
KT: In the letter that you and your three colleagues wrote to the CJI, you said, “Collegium had finalised and sent the MoP to the Government in March 2017. The government has not responded and in view of this silence it must be taken that the MoP finalised by the Collegium has been accepted by the government.”
The problem is, in an interview to Hindustan Times, Law Minister Ravi Shankar Prasad actually said that he had responded to the Collegium in July 2017 and that in his response, he had wanted a screening committee to select candidates, and he wanted to know criteria for making the recommendations.
Were you and your colleagues not made aware of the existence of the details of these letters?
JJC: I am not aware of this letter.
KT: Does this mean that the Chief Justice did not tell you?
JJC: It means I am not aware of it, that’s all.
KT: This suggests to me that you and your colleagues were kept in the dark.
JJC: The choice of language is yours.
KT: Is it not unusual for the members of the Collegium other than the CJI not to be informed that the government has responded?
JJC: If you have read my judgment on NJAC, I have made a comment on this. Some of these documents are not available to the society at large or even the members of the Court.
KT: What you are saying is that the second senior-most judge of the Supreme Court was not made aware that the government had responded to the Collegium [with respect to] certain things that they wanted to be put into the MoP?
JJC: I gave the answer once. I said I am not aware of it. I have not seen it.
KT: Law Minister Ravi Shankar Prasad says there should be a screening committee mechanism to select the candidates before the Collegium recommends a name. Do you agree with that?
JJC: I have a difficulty in answering this question. The reason is this. Under the orders of the Supreme Court in the NJAC matter, the Memorandum of Procedure is required be finalised by the Government of India and the Chief Justice of India in consultation with the four senior-most judges of the Supreme Court. As long as I continue to be a member of that five, I cannot give my views here. I can only give it to the body where the deliberations take place. So, I am not ready to answer this question.
On rejection of names recommended by the Collegium for reasons of ‘National Security’
KT: Has the Collegium said to the government ‘we are happy for you to reject the names on the grounds of national security provided you could explain to us fully why you are doing it and what is the evidence?’
Elevation of Justice KM Joseph
KT: It has been just over two months since the Collegium recommended the appointment of Justice KM Joseph and Indu Malhotra as Supreme Court judges and the government has not responded. Many people believe that the government is sitting on this matter because it does not want to elevate Justice Joseph because he was the person responsible for reversing the dismissal of Uttarakhand government. Do you share the fear that this could be the reason?
JJC: As of now I don’t share any fear or anything like that. Let us see what the government says.
KT: It has been over two months and they have not said anything. Is it worrying you that they have been silent for so long?
JJC: I don’t think ‘worry’ is the right word. I am concerned about it, I am sure the Court is concerned about it.
KY: Has the Collegium reiterated these names to the government and said “we want you to accept these names”.
JJC: There was no such reiteration.
KT: Have you, within the Collegium, asked the Chief Justice why have these names have not been reiterated?
JJC: I cannot answer this question.
KT: Can I interpret that answer [audience laughs]? Normally people choose not to answer that question because the answer would embarrass the Chief Justice. It seems to me you asked him once…[Justice Chelameswar interrupts]
JJC: Why only the Chief Justice? It embarrasses me also.
KT: I will tell you why I am pressing this point. The Supreme Court website said on the second of February when those two names were [recommended],
“The Collegium considers Justice KM Joseph is more deserving and suitable in all respects than other Chief Justices and other senior puisne judges of High Courts to be appointed a judge of Supreme Court of India.”
That is a huge statement of support. And yet for two months, the Government has not accepted the recommendation and the Collegium has not reiterated it either. Isn’t that strange?
JJC: (Laughs) Mmmm…
KT: You are very articulate with that “Mmmm”. Sometimes a smile and “mmm” speaks volumes. I think every member of the audience is learning to interpret and understand your “silences” and your “mmms”.
No to post-retirement job; On the letter written by the four seniors judges to the CJI
KT: What prompted you to write that letter and then make it public?
JJC: The reasons which prompted us to write that letter are contained in that letter, which is in public domain.
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.
KT: You made it public because of your anguish?
JJC: What else? Of course, it is [anguish].
I am on record, after retirement I will not seek any employment under any government.
On MCI-Prasad Education Trust case
KT: Is the order passed in the Prasad Education Trust case in Kamini Jaiswal’s petition another example of a problematic order passed by the Supreme Court?
JJC: I don’t want to comment on that aspect. I am still struggling with the question as to what was it that required a reversal of the order passed by a Bench presided over by me.
I did not pick up that case to decide it. Since the matter was presented before me on that day– because mentioning was officially required to be made before the “second court” – somebody mentioned it. And the fact of the case was that a former High Court judge who was an acting Chief Justice of a High Court for sometime was arrested in this country. And the allegation was made that the man arrested was trying to [unclear] justice. So, it was too serious a matter for the nation and the institution and the matter required to be heard by a Constitution Bench.
All that I said is let it be listed before a Constitution Bench of five senior-most judges.
One of the greatest lawyers of the twentieth century wrote in his book during the height of emergency when the ADM Jabalpur case was about to be heard, that there were rumours that the CJI was likely to constitute a Bench with those judges who were likely to be in tune with the supposed views of the [unclear].
KT: Is the lawyer Mr. Nariman?
JJC: Yes. Therefore, they requested Mr. Daphtary to go and [unclear] in the matter.
Mr. Nariman wrote that eventually a Bench was constituted with the senior-most five judges of the Supreme Court.
KT: Do you believe you were acting within your powers when constituting that Bench?
JJC: I do and I still believe it.
KT: You were not transgressing on the CJI’s prerogative?
JJC: I don’t think so.
KT: The CJI overturned your order, constituted another Constitution Bench and chose to preside over it himself, although many believe that in this matter, the singular suspicion could be pointing towards him as well. Was that a lapse of judgment on the part of CJI?
JJC: (Long silence) You can decide it for yourself. I don’t know to say.
KT: This is one of those articulate silences.
Allocation of cases
KT: In your letter you have stated “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.”
Can you give me one or two examples of the sort of cases you have in mind?
JJC: Just walk along the corridors of Supreme Court. You will hear the same rumours on which Mr. Nariman acted on that day.
KT: Unfortunately, Mr. Nariman is not here to explain what he meant. Give one example of a case where you believe selective preferential Benches were chosen?
JJC: I don’t want to get into these controversies.
KT: Can I suggest a case to you? (Justice Chelameswar nods) What about the Jayalalithaa case?
See what exactly happened [in the case] is not the question. What is the purpose of master of roster of power? Where the entire court sits as one body, this issue does not arise.
The power is available to the CJI where multiple Benches are there and so the whole idea is to make the system more efficient. If there is a purpose, was it served in that case? In Jayalalithaa case, the judgment was reserved for almost a year. So what purpose does it serve? Did the assessment not fail there?
On listing of Judge Loya case
KT: Why do you consider the assignment of Judge Loya case to Justice Arun Mishra’s Bench inappropriate or unsuitable?
JJC: We never said anything like that, whether it was appropriate or inappropriate. What transpired that morning was never mentioned in the press conference. A lot of things transpired. It was a different matter that the case was listed that day. Therefore, people started drawing inferences from that.
KT: Were the inferences wrong?
JJC: I am not saying anything at all. I am not going to make any comment about that matter.
Is CJI Master of the Roster?
KT: How do you understand the term Master of Roster? Does it give the CJI the power and authority to constitute whatever Bench he wants?
JJC: Undoubtedly, the CJI has the authority to constitute Benches; but under the Constitutional system, every power is coupled with certain responsibilities. The power is required to be exercised not merely because the power exists, but for the purpose of achieving some public good. The power is held in trust; it has to be exercised for the benefit of the body politic.
KT: So, the power cannot be exercised arbitrarily and there has to be a rationale?
KT: When a Chief Justice is selectively assigning cases to Benches of his preference without any rational basis for such assignment, are you not claiming that the CJI is actually allocating cases in a way that will pre-determine the outcome to suit his preference?
JJC: (Laughs) Is that a question or a statement you are making?
I am not saying that. The question is what is the basis on which some of these sensitive matters are allocated? The question is ‘are we as an institution able to sustain the faith of the general public in this country’? Will this kind of allocation be good for the institution?
KT: And you are saying that these selective preferential benches are undermining faith in the institution?
JJC: Yes. I believe so.
KT: As a result, it is also damaging India’s democracy?
JJC: Yes. Justice must not only be done but also appear to have been done.
KT: When this sort of selective assignment of cases happen, are the Chief Justices doing it for the benefit of the Executive?
JJC: I am not answering that question.
Impeachment of CJI
KT: This might probably be the most important question this evening. Do we have sufficient grounds for seeking impeachment of the CJI?
JJC: I don’t know why we are obsessed about this impeachment business. In fact, we wrote in that judgment of Justice Karnan that apart from impeachment, there must be mechanisms to put the system in order. Impeachment can’t be the answer for every problem. We need to correct the system.
KT: When cases are allocated to preferential Benches, are those preferred judges chosen because they are pliable?
JJC: It is not that individual judges [unclear]. I won’t comment about colleagues in that manner.
But then, it creates questions about the integrity of the institution, that is my chief concern.
KT: After your letter and press conference, the Chief Justice began the practice of publication of roster. But all PILs as well appeals against decisions on PILs by High Courts and all accountability matters are going to CJI.
JJC: He is the master of the roster. If he has the energy to handle the entire work, let him do it. I am not complaining about it.
KT: None of the four judges who gave the press conference are handling important matters presently before the Supreme Court such as the Ayodhya case, the Aadhaar case or land acquisition cases. Is that just a coincidence or is it deliberate?
JJC: I don’t know. You should be asking these questions to the Chief Justice. I am least interested in any of these cases.
KT: Do you ever get a feeling that the CJI keeps you out of important cases deliberately?
JJC: I always believe that there is a great way of doing small things and there is a small way of doing great things. The importance of a judge does not depend on the nature of cases he handles. I bother more about what I contributed.
Is the Collegium dysfunctional?
KT: What is the state of Collegium today? Has it become dysfunctional?
JJC: How did it…In fact just two days back, we made certain recommendations. Last week we made certain recommendations.
None of us is fighting for some property here. We have differences on certain institutional issues. That does not mean we are not able to see eye to eye. We are taking decisions.
On apprehensions about supersession of Justice Ranjan Gogoi
KT: Are you at all apprehensive that Justice Ranjan Gogoi, who was one of the authors of the letter to CJI, who was a participant in the January press conference, might not be elevated as Chief Justice of India when Justice Misra retires?
JJC: I am not an astrologer Mr. Thapar. I hope it will not happen. If it happens, IF, then it will only prove that whatever we said at the press conference is true.
On sitting judges going to the press
KT: Many people have applauded you and your colleagues for going public. But the truth is almost as many have criticised you and accused you of breaching judicial discipline. How do you respond to the criticism?
JJC: Anybody who enters public office can never avoid criticism. On your question about the four of us going to the press, I am really wondering where this principle came from.
Judges are not expected to debate in the press about their judgments. But if I come for an event like this or go somewhere like this, the press might be there and they might report it. Is it prohibited?
Similarly, by talking about administrative problems, we four believe that we were not breaching any of the time-honoured principles.
KT: Guideline no. 9 of Restatement of Values of Judicial Life says that a judge is expected to let his judgments speak for themselves, he shall not give interviews to the media.
JJC: About what? About the judgments.
KT: But you can talk about other things?
JJC: Why not?