Justice Chelameswar as the textualist, the critic and the dissenter

In a press release issued on 24 June, the Bar Council of India condemned the former Supreme Court judge Jasti Chelameswar for his comments to several media organisations after his official retirement two days earlier. The release states, “The amount of damage which has been to the institution since last January, would take a long time to be repaired and rectified.” That month, Chelameswar, along with three other senior judges of the Supreme Court, addressed a landmark press conference that will mark his legacy and remain etched as a defining moment of India’s judicial history. In the conference, the judges raised fundamental and damning concerns with the administrative functioning of the court. Chelameswar had told the press, “Unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country”—an ironic statement in the context of the bar association’s release.

Since his appointment to the Supreme Court, in October 2011, Chelameswar has been a part of over 400 benches and authored over 100 judgments. During this period, he demonstrated an unreserved expression of dissent, both within and outside the courtroom. In May, Chelameswar declined an invitation by the Supreme Court Bar Association to attend an informal farewell on his last working day. The breakaway from convention did not surprise many—during his tenure, the judge came to be known as the “chief dissenter.”

Chelameswar’s record in the Supreme Court shows a consistency in his convictions, despite its potentially significant consequences. I previously argued in a piece for the Supreme Court Observer—a project under the legal-research organisation Centre for Law and Policy Research—that his record reflects a textualist interpretation of the law and an emphasis on transparency. It is borne out both in Chelameswar’s judgments and in his discussion of the functioning of the Supreme Court—most notably, in his criticism of the exercise of administrative discretions by Chief Justice Dipak Misra.

The articulation of dissenting judgments has been an early aspect of Chelameswar’s Supreme Court tenure. In 2012, in the case of PA Sangma v Pranab Mukherjee, a five-judge bench of Supreme Court dismissed a petition challenging the election of Pranab Mukherjee as the president of India. The petition argued that Mukherjee held an “office of profit” at the time of his nomination—specifically, that he held the post of chairman at the Indian Statistical Institute, and that it was a disqualification under the Constitution. The majority judgment rejected the argument at the stage of the preliminary hearing itself. In a dissenting opinion, Chelameswar observed that the Constitution created no exceptions regarding the disqualification of the president, and that the petition deserved a regular hearing to allow the petitioner to prove his case. He wrote, “At stake is not the Presidency of India but the constitutional declaration of equality and the credibility of the judicial process.”

That year, Chelameswar also dissented against a bench led by Altamas Kabir in an election matter where the Desiya Murpokku Dravida Kazhagam, or DMDK—an unrecognised state party—challenged the constitutionality of the Election Symbols (Reservation and Allotment) Orderof 1968. The Election Symbols Order stated that a political party would only be recognised as a “State party” if it had secured a specified minimum percentage of votes and number of seats in the previous assembly election. The consequences of the order include the denial of an unrecognised party’s right to claim, or retain, an election symbol and that candidates of the same party could be allotted different symbols.

Kabir’s majority opinion held that the classification between the recognised and unrecognised parties was valid and reasonable. Chelameswar, on the other hand, concluded that there was no rational nexus between the classification of political parties with the professed objective of allotment of an exclusive election symbol for recognised parties. His judgment demonstrated that the Election Symbols Order disadvantaged unrecognised parties from competing fairly in elections. It further noted that the order curtailed the right of political participation and was “likely to preserve the political status quo.”

Chelameswar’s judgments are shorn of metaphors and closely wedded to the letter of the law. For him, the procedural means of arriving at judgments appear more important than the ends that they achieve. This is most evident in cases involving civil-political rights, in which the textual approach led him to deliver judgments that have faced criticism for their outcome and reasoning.

For instance, in the 2014 case of Mohd Arif v Registrar, Supreme Court of India, a five-judge bench dealt with the question of whether a review petition filed by a convict whose death penalty was affirmed by the Supreme Court was required to be heard in the open court. The petition challenged Order XL Rule 3 of Supreme Court Rules, 1966, which denied persons on death row an oral hearing during such review petitions.

A four-judge majority held that death sentence cases would form a class by themselves, meriting special treatment with mandatory oral hearing. The majority made an exception for convicts on death row because the penalty would lead to the deprivation of life. But Chelameswar dissented, holding that there is no mandatory obligation on the court to provide oral hearings for death-row convicts. The four judges were swayed by the irreversible nature of the death sentence to treat such convicts as a separate class deserving favourable concessions. On the other hand, Chelameswar observed, “If on a close perusal of the paper-book, the Judges find that there is no merit or stateable case, there is no special virtue in sanctifying the dismissal by an oral ritual.”

In pronouncing the majority verdict, the judge Rohinton Nariman noted, “when it is a question of life and death of a person, even a remote chance of deviating” from the original judgment “would justify oral hearing in a review petition.” In response, Chelameswar observed, “The possibility of the ‘remote chance of deviation’ from the conclusion already reached in my view is though emotionally very appealing in the context of the extinguishment of life but is equally applicable to all cases of review.”

The tradition of dissent must be celebrated because it allows us to see an imagined future, an alternate vision or the possibility of the dissenting opinion being resurrected on a future day. However, the dissent in Mohd Arif suggests that a deeply perceptive judge such as Chelameswar could not see beyond the labyrinth of rules and precedents in this case.

Cases affecting civil liberties require a judge to look at the subtext and context that is at play, in order to understand the socio-political implications involved, which Chelameswar appears to have missed in the Mohd Arif case. He demonstrated a similar oversight in the 2015 case of Rajbala v State of Haryana. In the case, a division bench led by Chelameswar upheld a controversial Haryana panchayat law, which introduced a matriculate education and a functional toilet as qualifications to contest elections. Since the right to contest elections was not a fundamental right, Chelameswar held, the legislature was within its right to prescribe disqualifications. He recognised that the law created two separate classes—of “educated” and “uneducated” individuals—but held that the classification had a rational nexus with the stated aim of providing a “better administration.”

Chelameswar stated, “It is only education which gives a human being the power to discriminate between right and wrong, good or bad.” He added, “Therefore, prescription of an educational qualification is not irrelevant for better administration.” He expressed similar condescension while upholding the disqualification on the ground of lack of functional toilets: “If people still do not have a toilet, it is not because of their poverty, but because of their lacking the requisite will.” In one stroke, as noted in the judgment, 68 and 41 percent of Scheduled Caste women and men, respectively, were disqualified from contesting panchayat elections in Haryana.

Chelameswar failed to note that the Haryana panchayat law hid within its seemingly neutral disqualifications a form of discrimination that disproportionately disenfranchised the most marginalised and vulnerable groups. Perhaps fundamental-rights cases require the judicial blindfolds to be dropped to see the larger stakes at play. He failed to account for the fact that discrimination lies not just in the words of a law, but also in its effect.

Chelameswar’s opinions, as consistently expressed in and out of the courtroom, also demonstrate the importance he attached to issues of transparency and accountability. This is perhaps most evident in his unequivocal criticism of the collegium system of judicial appointments, particularly in his notable dissent in the 2015 case challenging the proposed constitution of the National Judicial Appointments Commission, or NJAC.

The case dealt with the 99th constitutional amendment, which sought to set up the NJAC to make appointments to the high courts and the Supreme Court, and replace the collegium system. While the majority verdict of the five-judge bench led by Justice Jagdish Singh Khehar struck down the amendment, Chelameswar upheld its constitutional validity. Chelameswar’s dissenting opinion laid bare the follies of the collegium system and did not mechanically infer that mere executive involvement in appointment necessarily endangers judicial independence.

He wrote, “The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.” Emphasising on this opacity, Chelameswar noted, “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.” He added, “Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.”

In September 2016, Chelameswar took his principled opposition to the collegium system outside the courtroom, by opting out of the collegium meetings called by then Chief Justice TS Thakur. According to a Frontline article published that month, he refused to attend the meetings “until it evolved a proper procedure to record its minutes.” In October 2017, when Chelameswar was the seniormost judge after Chief Justice Dipak Misra, the collegium resolved to upload its resolutions on the Supreme Court website.

Even in the 2017 seven-judge bench judgment holding the Calcutta High Court judge CS Karnan guilty of criminal contempt, Chelameswar wrote a separate concurring opinion raising concerns with the collegium system. He wrote, on behalf of himself and Justice Ranjan Gogoi, that the case highlighted “the need to revisit the process of selection and appointment of judges.”

After the NJAC and Rajbala cases, some commentators have alleged that Chelameswar privileged the executive as central while considering issues of individual liberty or constitutional structures. But a consideration of the judge’s conduct, particularly in the last few months of his tenure, reveals a clear stance against executive interference in judicial appointments. In fact, consistent with his letter-of-the-law approach, Chelameswar has also spoken out against the deviation from the existing procedure for judicial appointments.

The moment that will define Chelameswar’s legacy took place on 12 January, when the Supreme Court judge, along with three other colleagues, held an unprecedented press conference to highlight fundamental concerns plaguing the institution. The four judges brought to fore issues concerning the dark spaces of the court’s administrative functioning—such as the opacity in bench formation, the non-finalisation of the memorandum of procedure and the discretionary powers of the chief justice. The act led to a judicial exile—Chelameswar has not been assigned to any of the constitution benches that Misra has formed since the conference.

Two months later, Chelameswar wrote a letter to Chief Justice Misra, marking copies to all other judges of the Supreme Court, questioning an inquiry against P Krishna Bhat, a judge of the Karnataka High Court. Dinesh Maheshwari, the chief justice of the high court, had initiated an investigation into Bhat upon the request of the central government. At the time, the collegium had recommended Bhat’s name for elevation to the Supreme Court, and his file was sitting with the government.

In his letter, Chelameswar took particular opposition to the central government’s decision to reach out to Chief Justice Maheswari directly. He wrote that any correspondence, clarificatory or otherwise, “has to be” between the Supreme Court and the executive. He added, “Asking the high court to reevaluate our recommendation in this matter has to be deemed improper and contumacious.” Subsequently, Maheswhari reportedly closed the inquiry, though the government is yet to clear his name for elevation.

Chelameswar again wrote to Chief Justice Misra, in May, regarding executive interference in the elevation of a judge cleared by the collegium. The central government had returned the file of KM Joseph, the chief justice of the Uttarakhand High Court who had earlier set aside the presidential rule imposed by the centre in the state in 2016. Chelameswar’s letter was reportedly a rebuttal to the points raised by the government while returning Joseph’s name to the collegiums.

While it is unclear whether his dissents will lead to any institutional reform, it can be safely said that Chelameswar represents a rare breed of judges who walked the talk. In an April interview with the journalist Karan Thapar, Chelameswar had expressly stated that he would “not seek any appointment from the government” after his retirement. He has also shown an unforeseen urgency in vacating his official bungalow. It reflects Chelameswar’s adherence to his own words of caution, as expressed in the March letter to all the judges of the Supreme Court: “Let us also not forget that the bonhomie between the judiciary and the government in any state sounds the death knell to democracy.”

Chelameswar has left the court with many inconclusive debates and questions, chief among which is the relationship between collegiality and conviction, individual freedom and institutional independence as well as dissent and democracy. His tenure reminds us that dissents are crucial to our conceptions of justice and exhorts us to not seek consensus at the cost of our convictions. A time may come not too far into the future where dissents, both their incidence and their quality, might become the most reliable barometer of judicial independence. That day would owe a lot to the efforts of Jasti Chelameswar.