BCI’s Criticism of Justice Chelameswar is Embarrassing – for Them

Misquotes, whataboutery and poor drafting are just some of the things wrong with the Bar Council’s press release

Bar Council of India Chairman Manan Kumar Mishra (L) and Justice Jasti Chelameswar (R)

(Photo: Erum Gour/The Quint)

The tenure of Justice Jasti Chelameswar as a judge of the Supreme Court came to an anti-climactic end on 22 June, with the outspoken judge demitting office during the apex court’s summer vacation. After months of being in the spotlight, whether over the CJI’s medical bribery case or the unprecedented press conference in January, it seemed strange that the final month of his time as an apex court judge was so quiet and lacking in controversy.

And yet, here we are a few days later, with a Bar Council of India press release criticising Justice Chelameswar, in which they say that statements made by the retired judge “cannot be tolerated, accepted or digested by the Advocates including the rest of the countrymen.”

“Strong words, these <not ‘like these’>, by the body that is meant to govern lawyers in the country: the kind that you’d expect to seriously embarrass their subject, maybe even inspire them to “do an self introspection” [sic], as the statement urges Justice Chelameswar”. Unfortunately for the BCI, their press release is more of an embarrassment to them, thanks to its specious reasoning and dubious drafting.

Too caught up to read the whole story? Listen to it here:

Why did the Bar Council Issue This Press Release?

The press release seems to begin as a response to the interviews given by Justice Chelameswar upon his retirement to India Today, Hindustan Times, The Print and NDTV. The BCI is of the opinion that the judge gave “controversial and irrelevant statements” to the media, and that what he said was against the dignity of the post he had held.

It is difficult to see why the BCI took such umbrage against what the retired judge said in those interviews, in which he justified the decision of him and three other senior judges of the apex court to go public with their concerns about the functioning of the courts in January.

(L-R) Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur at the press conference on 12 January 2018(Photo: PTI)

Justice Chelameswar, in fact, took great care to emphasize that the concerns raised by him and Justices Ranjan Gogoi, Madan Lokur and Kurian Joseph, were not part of some vendetta against current Chief Justice of India Dipak Misra, but a broader institutional problem that went back to previous CJIs as well.

Of course, if the BCI were going to take the trouble to put out an official press release, you would think that such an august body of professionals would surely have good reasons to do so, would identify the problematic statements, and tell us exactly what was wrong with what the judge had said.

Or not.

Don’t Talk About Bench Fixing! You Didn’t, But Still!

To start with, the BCI is unhappy that Justice Chelameswar used controversial words like “Bench fixing”. Now bench-fixing – lawyers or parties getting judges of their choosing to hear their cases – is a serious allegation and certainly shouldn’t be bandied about lightly.

Which is exactly why Justice Chelameswar has never used the term, notwithstanding the BCI’s usage of double quotation marks to say he did. India Today ran a programme which earnestly asked if the judge had blown the lid off bench-fixing in India in the course of his interview with them, but the phrase was never used by Justice Chelameswar himself, nor was it raised in a question to him. The channel inferred that he was blowing the lid off bench-fixing in India, and then promptly got several panelists to shout at each other about this.

Justice Chelameswar has no doubt expressed concerns about the selective allocation of sensitive cases by CJIs over the last couple of years, but this is not the same as making careless allegations of bench-fixing. He and the other three senior judges had expressed concerns that matters of grave constitutional and political importance were not being heard by more senior judges, but these concerns were not unfounded.

A simple look at the current roster system of the Supreme Court, instituted after the press conference, shows why – every single important constitutional issue is listed to be heard by the Chief Justice, and none of the other senior judges are part of the bench hearing these. This is a problem even if the assignment of cases is not at the behest of someone – it is a question of propriety and ensuring the most experienced judges are able to lend their expertise to the cases which matter the most.

What About Some Whataboutery?

As if it weren’t enough for the BCI to misquote Justice Chelameswar, they also indulge in a bout of pointless whataboutery – saying that there have in fact been two-three occasions of “Bench fixing” in the Supreme Court, but that Justice Chelameswar didn’t raise objections at the time. Which is nonsensical, since Justice Chelameswar raised objections to selective assignment of cases as far back as November 2017 in a joint letter of the four senior judges to CJI Dipak Misra, and prior to that in separate communications as well.

Since the BCI is aware of that letter, it appears they don’t consider Justice Chelameswar’s statements about selective assignment of cases to count as him speaking out against “Bench fixing”, which also makes no sense because that would mean there are no grounds to say he’s talked about bench-fixing at all.

If indeed there have been two-three instances of bench-fixing, then their complaints make even less sense, because it would then mean that Justice Chelameswar was right to bring this up!

The BCI tries to cover up this absurdity by claiming that Justice Chelameswar had in fact agreed to hear certain matters himself in a problematic manner. This is also entirely specious since Justice Chelameswar never assigned any cases to himself, and even when the medical bribery cases were mentioned before him (in accordance with practice, since the CJI was hearing arguments on a Constitution Bench at the time), he referred the matter to a Constitution Bench of the five senior-most judges of the Court, which certainly can’t be considered bench-fixing.

That’s Quite a Contradiction You’ve Got There

But don’t worry, even if the whole issue of bench-fixing raised in the letter is debunked, the BCI has more! From the post-retirement statements, they now jump to past history, warning that Justice Chelameswar should introspect before issuing statements about judges meeting politicians, since he met CPI MP D Raja immediately after the press conference.

It is interesting that this should be mentioned in the press release since it was a question about precisely this that created much of this brouhaha. When Rajdeep Sardesai asked Justice Chelameswar about his meeting with Raja, the retired judge quipped that instead of worrying about him meeting someone like Raja, we should be worried about whether people from the ruling party were meeting judges.

He then went on to explain that he and Raja have a long association of many years, and that Raja had come to visit him as he was not aware of the press conference, and so when passing by Justice Chelameswar’s house and seeing all the media presence, was concerned about the judge’s health.

Now if the BCI wants to question this narrative of Justice Chelameswar, they are free to do so, but it would be overbold to question the integrity of a Supreme Court judge without any proof, especially when the BCI makes this very serious insinuation about the meeting between the two, saying that it “clearly deciphers the mystery and motive behind the controversial statements being issued by Justice Chelameswar.”

Manan Kumar Mishra and the office-bearers of the BCI at the previous press conference(Photo: PTI)

BCI Chairman Manan Kumar Mishra and the other signatories of the press release should speak plainly and clearly say what they mean by the “mystery and motive”, and provide us with proof of what they are saying. Though if they mean that Justice Chelameswar has taken the positions he has at the instigation of political influences, it is strange that back in January, Mishra spoke on behalf of the BCI to say that there was no need for action against the four judges, and that they

“are all honest and men of integrity.”

The Dettol Factor

The BCI statement follows up this very serious charge with the claim that there has been severe damage to the judiciary ever since the January press conference, but happily, the attempts of those throwing mud at the institution have “woefully failed.”

According to them, political leaders, advocates and judges have been trying to malign the judiciary for the purposes of “self consolidation and for fulfilling selfish and vested interests”.

Leaving aside how such an unsubstantiated claim opens them up to defamation by Justice Chelameswar, they also make the ridiculous claim that “99.9 of the legal fraternity and the judges have seen through this ulterior motive and mindset” and that they have faith that Indian lawyers will criticize Justice Chelameswar’s views.

Presumably they meant 99.9% of the legal fraternity, but it would be interesting to know how exactly they arrived at this precise figure, since the BCI barely knows how many lawyers are registered in India, and most certainly did not solicit the views of all lawyers on their books to come up with it.

It is in fact quite serious for a body like the BCI to make such a statement on behalf of the legal fraternity, and goes well beyond the scope of its authority, especially since they are making accusations against a Supreme Court judge and condemning various people.

Disgraceful and Disrespectful Drafting

One of the worst things about the press release is also how sloppily it has been drafted. As lawyers, we pride ourselves on our drafting, which is meant to be precise and of high quality, given the stakes involved. However, the BCI press release is nothing short of atrocious, and an embarrassment to the Indian bar.

Some might say that criticising grammatical errors is elitist, but it is difficult to accept that the apex body for lawyers in the country doesn’t know it’s incorrect to tell someone to ‘do an/a self introspection’ (this comes up more than once in the statement) or randomly capitalize words in the middle of a sentence like ‘Immediately’.

However, the inexcusable problem with the drafting of the press release is that, despite being written to criticize Justice Chelameswar, it doesn’t get his name right even once. Throughout the release, he is referred to as Justice “Chemeleshwar”, which shows how little respect or care the BCI has even for someone who has been a judge of the Supreme Court, and makes a mockery of their assertion that the institution needs to be respected.

With their statement betraying such an absence of logic, reasoning or attention to detail, and also opening them up to reasonable claims of defamation, perhaps the most appropriate thing to do would be to offer them some of their own sage advice:

“Self restraint … seems to be a forgotten virtue. They have to prevent themselves from issuing statements without giving any thought to the consequences such statements could entail.”

You can read the full text of the press release via Bar & Bench here.