Justice J. Chelameswar is due to retire on 22nd June but an informal farewell was organised by the SCBA on 18th May, which he refused to attend. This breakaway from  convention did not come as a surprise about a judge who has come to be known as “chief dissenter”. However, it is worth examining if his public persona is consistent with the public reasoning function exemplified through his judgments. Justice Chelameswar was appointed to the Supreme Court in October 2011 and having spent 7 years in Supreme Court,  he is leaving behind a rich judicial legacy.  This is an attempt to understand the evolution of the judicial mind, by focusing on his key judgments.

 

The Dissents

In 2012, Justice Chelameshwar gave a dissenting opinion on an election petition dealing with disqualification of Congress Presidential candidate, Pranab Mukherjee for holding 'Office of Profit' post.  He reasoned that though under Article 102(1)(a), the Parliament is empowered to exempt certain ‘Office of Profit’ posts from triggering disqualification, no such provision exists for exempting a presidential candidate under Article 58(2). He clarified that Parliament (Prevention of Disqualification) Act 1959 as amended in 2006 has no application for a candidate running for the Presidential Office. He left the factual assertations to be proved by the petitioner and offered no findings.

One could conjecture that this early judgment of 2012 gave an impression that Justice Cheleameswar was wedded closely to the text so much so that he ignored the larger purpose of exempting certain offices from disqualification. It also bears recalling that the Junior Judge dissented against then CJI Altamas Kabir and Justice Sathasivam, who later became Chief Justice.

 His next notable dissent came 3 years later in NJAC Case, where he upheld the constitutional validity of 99th Amendment (which added Article 124 A to the Constitution) and NJAC Act. While the 4 judges were zealously active in protecting their own turf, it was a rare occasion when he laid bare the follies of the collegium system and didn't infer mechanically that any executive involvement in appointment endangers judicial independence. 

 

The Textualist

If we read Justice Chelameswar's dissents in Office of Profit or NJAC case, it appears that he was a judge who paid homage to the text. For him, the procedural means were as important as the larger ends.

This was witnessed again in TN MLA Suspension Case where Speaker’s decision to suspend 11 Tamil Nadu MLAs for “unruly conduct” was challenged. Justice Chelameswar held that even though suspension of MLAs did not violate their legislative privilege or freedom of speech [Art 19(1)(a)] or their freedom of occupation [Article 19(1)(g)], but non-furnishing of video recording to MLAs violated their ‘natural justice’ right under Article 14. Despite the rejection of the petitioners’ substantive claims, he held that deviation from procedural requirements would vitiate the otherwise legitimate exercise of authority by the Speaker.

As a judge, it was difficult to sway him by appeal to higher principles, larger purpose or an appeal to judges' good conscience, which has increasingly become the norm. However, strict fidelity to textualism lead him to give a judgment in Rajbala Case which has been criticised as ‘elitist’ for its failure to protect basic-civil-political rights of the citizens.

In Rajbala case, he upheld the controversial Haryana Panchayat Law, that made contesting panchayat elections contingent on having a minimum educational qualification and a functional toilet at home, among others. He held that right to contest not being a fundamental right, the legislature was within its right to prescribe additional disqualifications. He did recognise that the law created two separate classes – "educated" and "uneducated" but held that the classification had a rational nexus with aim of providing “better administration”. He observed “..it is only education which gives a human being the power to discriminate between right and wrong, good or bad. Therefore, prescription of an educational qualification is not irrelevant for better administration.”

Similarly, while upholding the disqualification on lack of functional toilets, he noted that “if people still do not have a toilet, it is not because of their poverty (emphasis added), but because of their lacking the requisite will.” Sometimes, civil liberty issues require a judge to look at the subtext and context at play, something he missed in Rajbala. And this judgment had the effect of disqualifying 68% of Dalit women and 41% of Dalit men from contesting Panchayat elections in Haryana.

In March 2015, he was part of the division bench in Shreya Singhal case which struck down Section 66 A of the Information Technology Act as being arbitrary, and excessively and disproportionately invading the right of free speech and expression. In a case which was universally celebrated, it is surprising to see Justice Chelameswar in silent concurrence with Justice Rohinton Nariman. A judge who wrote so many opinions and notable dissent did not contribute to the judgment textually. In hindsight, one can conjecture that he might see this case as a 'lost opportunity.'

 

Transparency and Accountability

 Transparency and accountability issues were close to him and he spoke consistently and unequivocally through his judgments. He was an ardent critique of the Collegium in its current form. In 2017, the 7 Judge bench found Judge C.S. Karnan guilty of criminal contempt for scandalising the court. In a separate concurring judgment, Justice Chelameswar weighed on the broken collegium selection process and called for reform by observing, “..what appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of the constitutional court is a matter which is to be identified after an appropriate debate by all concerned – the Bar, the Bench, the State and the civil society..”

According to him, the NJAC was much-needed reform to address myriads of problems plaguing the Indian judiciary, including spiraling arrears and the inability to fill up vacancies. His decision to opt out the collegium meetings was further proof of his aversion towards the current collegium system.

This call for ‘transparency’  came at the cost of the senior judge being sidelined from being part of constitutional benches on important matters. He was not part of the 5 judge bench in Triple Talaq Case, however, he was one of the 9 judges in Puttaswami Case. The 9 judge bench unanimously declared privacy to be a fundamental right. Despite being of one of the 6 concurring voices, Justice Chelameswar opinion is distinct as it clarified different standards which have to be met for abridging the privacy right– a “reasonable classification” test for Article 14; a “just, fair and reasonable restriction test” for Article 19; and a “just, fair, reasonable and compelling state interest” test  to satisfy the ‘procedure established by law’  standard in Article 21. By  specifying differential state standards for abridging the right, he concretized the privacy right which was earlier seen as a “vague and amorphous right”

 

 Judicial Exile – last months

On January 12th,  Justice Chelameswar chaired the unprecedented  Judges Press Conference to hint at institutional dark spaces– opacity in bench formation, non-finalisation of Memorandum of Procedure, and discretionary power of CJI, among other issues. His sidelining turned to judicial exile after the press conference, as he was not on any of the constitution benches formed by Chief Justice Dipak Misra on 16th January.

The man had once remarked that “there are small ways of doing big things and then there are big ways of doing small things”. He exemplified the latter when he delivered a judgment in Lok Prahari case in Feb 2018. Presiding a two-judge bench, he passed directions mandating candidates contesting polls to disclose “their sources of income” as well as their income of “family members”. Previously, the candidates only revealed their “income” and not their sources. He juxtaposed this obligation with the citizens 'right to know', a fundamental right under Article 19(1)(a).  It is only befitting that the judge who was institutionally sidelined for calls of transparency and accountability gave a judgment in last few months, which holds significant potential for reforming electoral finance.

Justice Khanna, the lone dissenter in ADM Jabalpur Case once remarked, “ A dissent in a court of last resort…is an appeal to the brooding spirit of law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judges believe the court to have been betrayed.” 

While the dissent in judgments in NJAC and Office of Profit Case have been redeemed as a clear exposition of principles, it is yet to be seen if his dissents outside of the court lead to institutional reforms or posterity would see it as adhoc –unnnecessary adventurism which weakened the institutional integrity. However, it can be safely said that Justice Chelameswar represents a rare breed who walked the talk. This was reinforced again at the end when he refused to hold any post-retirement office alluding to higher principles of accountability and judicial independence.