Justice Chelameswar as the textualist, the critic and the dissenter

27 June 2018
The articulation of dissenting judgments has been an early aspect of Jasti Chelameswar’s Supreme Court tenure.
Adnan Abidi/ REUTERS
The articulation of dissenting judgments has been an early aspect of Jasti Chelameswar’s Supreme Court tenure.
Adnan Abidi/ REUTERS

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.

Satya Prasoon is a lawyer working with the Centre for Law and Policy Research, where he is associated with the Supreme Court Observer project.

Keywords: Supreme Court judiciary Dissent judicial independence Dipak Misra Jasti Chelameswar