After setting off a chain of events which culminated in a five-judge bench of the Supreme Court dismissing as withdrawn a petition challenging the dismissal of the CJI’s impeachment motion, Justice Jasti Chelameswar wants to fade quietly into the night. With just a week left as a judge, he has refused to attend a traditional farewell of the Supreme Court Bar Association.
Although he will retire on June 22, May 18 is his last working day. It was Chelameswar, who was forcing CJI Dipak Misra to upload collegium resolutions on the website about aspiring judges. Chelameswar would have been the 45th CJI if the 38th CJI S H Kapadia had not delayed elevating him to the apex court. But Kapadia took his secrets to the grave which may have been why Chelameswar boycotted collegium meetings.
It was Chelameswar who declared at a press conference on January 12 that the four seniormost judges did not want to “sell their souls” and that “democracy was in danger.” After that, the four “rebel” judges were sidelined by CJI Dipak Misra, who heard sensitive matters by benches headed by himself or other benches where the four senior “rebels” were excluded.
On May 9, Justice Arun Mishra lashed out at lawyers for targeting apex court judges inside and outside the court. Chelameswar alleged it was Justice Arun Mishra who had close links with the BJP just as Jusice L Nageswara Rao enjoyed “unwarranted intimacy” with A P chief minister N Chandrababu Naidu.
During his nearly seven years in the apex court, Justice Chelameswar created a lot of enemies, which was obvious when he did not attend the farewell of former CJI T S Thakur. He has worked with seven CJIs from 2011 to 2018, including Altamas Kabir and P Sathasivam, who were controversial. It was during CJI Thakur’s tenure that Chelameswar boycotted collegium meetings due to opacity.
Although there are paeans of praise sung for CJI Dipak Misra, there is no doubt that by declaring “there was nothing wrong in the executive rejecting the name of chief justice K M Joseph”, CJI Dipak Misra meekly toed the line of the Modi government. Just as a former CJI, T S Thakur, wept like a child before Narendra Modi in public, these CJIs did not oppose Modi while selecting judges.
Perhaps, all these events prompted Chelameswar, Kurien Joseph and Madan Lokur to call for a full-court meeting to discuss the “future of the Supreme Court”. It is perhaps unprecedented that a CJI, who is declared as the master of the roster and the “sole repository of the Constitution” has set up a five-judge Constitution bench to hear an impeachment motion against himself.
Normally, a two-judge bench or a three-judge bench refers a matter which requires interpretation of the Constitution to the CJI, who then sets up a five-judge bench, which needs some of the 13 benches to be split. But, if the CJI is himself being impeached, propriety would require that his functions be exercised by the seniormost judge, who in this case, happens to be Justice Chelameswar. As he addressed a press conference, which culminated in impeachment of the CJI, the latter thought it fit to exclude him and the entire collegium from hearing the impeachment motion due to a perceived conflict of interest. But judges, being judges, are seen to be neutral when deciding matters of grave importance, like the impeachment of the CJI.
So, bypassing the entire collegium and setting up a five-judge bench comprising the sixth to tenth in seniority is unprecedented although lawyers claim this proves the CJI’s neutrality. Be that as it may, lawyers like Kapil Sibal are entitled to know who set up the bench, more so when Chelameswar agreed to give his decision on the impeachment motion on May 8. The undue haste to bypass Chelameswar so that the CJI exercises his prerogative as “master of the roster” is inappropriate.
After Dipak Misra demits office in October, whether Ranjan Gogoi will be sworn in as the next CJI will be watched with bated breath. After him, the 47th CJI in-waiting is Justice Sharad Arvind Bobde, who comes from a Nagpur-based lawyers’ family as he is the grandson of a lawyer and son of Arvind Bobde, a former advocate-general of Maharashtra and a staunch Congressman. This judge’s elder brother practiced in the Supreme Court and died in 2016.
Nagpur is not only an RSS bastion but has also produced several chief ministers, advocates-general and judges. Justice Bobde will never go to the media as he is non-controversial. He will be succeeded by the 48th CJI N V Ramanna from Andhra Pradesh and the 49th CJI U U Lalit, who was the lawyer for BJP chief Amit Shah. By opposing the elevation of chief justice K M Joseph, the BJP government has ensured that those whose ideology is doubtful, will never occupy positions of power.
The Supreme Court will never see an iconoclast like Chelameswar again, who was a thorn in the flesh of CJIs T S Thakur, Jagdish Singh Khehar and Dipak Misra. Despite the paeans of praise for CJI Misra and unkind words for Chelameswar, most of his actions were in public interest which was why he prophetically declared when the judiciary and the government are friendly, democracy is in danger.
Olav Albuquerque holds a PhD in law and is a practicing lawyer-cum-journalist of the Bombay high court.