June 22 will see a revolutionary Supreme Court judge demitting office. He is Justice Jasti Chelameswar, the senior most Supreme Court judge, who was sworn in on October 10, 2011 with the present Chief Justice of India (CJI), Dipak Misra who is younger than his next-in-command by 101 days, so that the CJI retires by exactly the same number of days, at the age of 65 years.
Justice Chelameswar would have been the CJI had it not been for an inexplicable delay in elevating him. Being the most senior judge in the Supreme Court, he knows which collegium judge was responsible for delaying his elevation which cost him the CJI’s post. If a judge is sworn-in even 30 minutes ahead of another judge, he retains his seniority by 30 minutes.
Could that have been the reason why Justice Chelameswar was the lone dissenter when the National Judicial Appointments Commission Act (NJACA) was struck down with the 99th amendment of the Constitution in 2015? In his lone dissenting judgment, he upheld the NJAC Act, passed by Parliament in 2014. He criticised the secretive collegium system of appointing judges and even wrote to the former CJI J S Khehar that a judge of the apex court, Justice N V Ramana was too close to Andhra Pradesh Chief Minister N Chandrababu Naidu, who had objected to six lawyers being made high court judges.
Later, however, Justice Chelameswar joined the other judges who gave concurring judgments on the collegium, delivered in December 2015, because it sought to improve the system. The collegium later agreed to adopt the circulation method for appointing judges, as suggested by Justice Chelameswar. Justice Chelameswar can be compared to another maverick judge, Justice Markandey Katju, who wrote two lead news reports in a national daily giving details of how a corrupt judge was sworn in despite an adverse Intelligence Bureau report about him.
For his outspokenness in his blog where he allegedly cast aspersions on some sitting judges, Justice Katju got a contempt notice. But Justice Katju, being Justice Katju, again spoke bluntly by allegedly telling Justice Ranjan Gogoi: “Don’t give me threats…don’t try to be funny with me.”
Justice Ranjan Gogoi is the senior most judge after Justice Chelameswar and will be sworn in as the next CJI after Justice Dipak Misra. He is the first CJI from the north-eastern states as he hails from Assam and was earlier the chief justice of the Punjab and Haryana high court.
As the most senior judge of the apex court, Justice Chelameswar was instrumental in compelling CJI Dipak Misra to disclose on the Supreme Court website the decisions taken by the secretive collegium as to why some incumbents were elevated to the Supreme Court and others were not. And, also, why some lawyers were not found fit for appointment as high court judges. Or why some judges were shunted from one high court to another.
After all, justice must not only be done but seen to be done. So that when there is a question mark on certain justices of the apex court and 24 high courts being appointed, the justice being dispensed by them is justiciable. Justice is a subjective concept because unlike divine justice, man-made justice is questionable.
Justice Chelameswar was the only judge to boycott collegium proceedings by calling them opaque, where a few judges proposed the names of some judges whom they knew as being suitable for elevation to the Supreme Court. No reasons were ever recorded so that even future CJIs had no access to the records.
Justice Chelameswar created a crisis of sorts when the collegium could not hold its meetings because he boycotted them, so, there was a delay in appointing new judges. For judges must be ascetics in not revealing all they know. As a former CJI, S H Kapadia was fond of advising.
This came to the fore when this writer sought to interview S H Kapadia when he had come out of a law firm near Hutatma Chowk, after retirement. But Justice Kapadia, who succeeded a controversial CJI, Justice K G Balakrishnan, against whom there was a CBI probe, refused to be interviewed and took his secrets to the tower of silence, like a true ascetic. Justice Kapadia cleared Justice Gogoi as the next CJI and so the latter’s being the next CJI is a foregone conclusion.
But, unlike CJI Kapadia, who practiced ascetism in granting interviews, Justice Chelameswar spoke bluntly and paid the price when for some time he was denied work in which he had expertise and was made to hear labour matters – a branch of law in which he hardly had experience, as he himself confessed. No matter. But, when the former CJI T S Thakur demitted office, Justice Chelameswar adroitly stayed away from the customary farewell party on the lawns of the apex court. Although this raised eyebrows, Justice Chelameswar stuck to his guns.
Seven judges will retire from the apex court this year. Six vacancies have yet to be filled. If this delay in filling them continues in 2018, the number of vacancies will rise to an unprecedented 13. At present, the apex court is functioning with 25 judges, against its sanctioned strength of 31, imposing a heavy burden on those judges who have to shoulder a weighty workload.
The writer holds a PhD in law from the University of Mumbai. He is a journalist-cum-advocate of the Bombay high court.