Justice Chelameswar’s Legacy: Activism In Its True Sense

Justice Jasti Chelameswar.

(Photo: PTI)

(This 22 May 2018 story has been reposted from The Quint's archives to mark Justice Jasti Chelameswar's last working day in the Supreme Court.)

In writing about Justice Jasti Chelameswar days after he retired as a judge of the Supreme Court of India, we must keep in mind a warning delivered by a wise and knowledgeable friend of mine on Twitter: That this is too soon, and an assessment is tainted by the perceived allegiances of the current day.

Fools rush in where angels fear to tread and in that spirit, let me say this: One must write about Chelameswar nonetheless, if nothing else to look back in ten years to see what one felt at this moment, and if, for some reason, one’s views and thoughts on the matter changed since.

Justice Chelameswar’s tenure at the Supreme Court is not just a sum of his judgements and orders. For most judges, this is the only way to assess their legacy but in his case, one must also look beyond. Chelameswar cared deeply about the institution – not just the Supreme Court itself but also the judiciary as a whole. His ‘rebellions’ – be it the refusal to take part in collegium meetings during Justice JS Khehar’s term as Chief Justice of India or the press conference – had to do with institutional concerns.

It may make for an interesting alternate history story, but one wonders what the Supreme Court would have been like if Chelameswar had been appointed before Justice Dipak Misra and ended up becoming the Chief Justice of India.

How would he have handled the pressures of the current government when it came to the appointment of judges? What about his colleagues on the bench? One is tempted to engage in this futile exercise and imagine that if some past collegium had made a slightly different choice, the state of the Supreme Court wouldn’t have been what it is today.

Still, speculation aside, what he has done, and what the nation will be immensely grateful for, was to put his career and reputation on the line by talking about institutional concerns.

In that sense, he was truly an ‘activist’ judge. Far too often, this label has been applied to judges who have written nice prose in broad terms within their judgements or passed rash orders without a care for institutional concerns. Perhaps, the term should be rightly be used for judges who did something that was not quite expected of them to defend the institution or fundamental rights. How successful they were is a different matter, but by that measure, Chelameswar was certainly an activist judge.

Chelameswar’s ‘Original’ Approach

All of this should not deflect from his contribution to constitutional jurisprudence. Given the short average tenure of judges on the Supreme Court, it is not often that a judge gets to leave behind a sufficiently large number of judgements in order to have been said to have left behind a legacy.

Even judges who serve a sufficiently long period of time don’t necessarily leave behind a tangible legacy in this respect, but Chelameswar definitely did. He brought a very independent and original – as opposed to ‘originalist ’– approach to interpreting the Constitution and it is likely to have a great impact on how future judges and lawyers approach issues of constitutional interpretation.

Even as a junior judge on the bench Justice Chelameswar was willing to take a different view, if not dissent from the view of the senior judge presiding over the bench.

The Italian Marines case (where he agreed with then Chief Justice Altamas Kabir but for different reasons) and the Subhash Popatlal Dave case (where he disagreed with the CJI and still ended up in the majority) stand testimony to this. His most famous dissent perhaps was in the National Judicial Appointments Commission case where he disagreed with the majority on the constitutional validity of the 99th Constitutional Amendment and the NJAC Act.

His dissent, in this case, must also be read with his concurring opinion (on behalf of himself and Justice Ranjan Gogoi) in the Justice Karnan contempt case to understand his views on the state of the judiciary and his clear-headed understanding of the troubles with the institution.

That said, one judgement which strikes a discordant note in understanding Chelameswar’s legacy will be Raj Bala v State of Haryana. Though the judgement could be said to have put an end to the debate over whether the right to vote is a constitutional right or a statutory right, it did gut the substance of the right to vote.

By allowing for all sorts of restrictions on the rights of candidates to stand for elections at the panchayat elections, Chelameswar may have laid the ground for the hollowing out of the most crucial aspects of India’s democracy.

Perhaps his most interesting judgement is his concurring opinion in the K Puttaswamy v Union of India case where he joined the unanimous majority in holding that the right to privacy was a fundamental right. His reasoning, however, was not like the others. He attempted to build a novel theory of interpretation of the Constitution that looked into the absences of our Constitution and sought to fill them up with meaning.

This was an apt case to do so since the words ‘right to privacy’ find no place in the Constitution, yet, as Justice Chelameswar points out in his opinion, that is no reason to reject the existence of that right. Without going too much into detail, Justice Chelameswar found a novel way to expound on the notion that a Constitution is a living document whose interpretation is not always fixed but turns on the evolving understanding of the human experience, anchored though on some core non-negotiable principles.

The Debt of Gratitude

It is unfortunate that a judge with an interesting and original approach to the interpretation of the Constitution, as opposed to an originalist approach, did not get more opportunities to hear matters of constitutional importance.

This is not due to sheer bad luck but obvious victimisation at the hands of a Chief Justice who used his powers as the master of the roster to punish rebellious manner. It is a different matter that the very same Chief Justice sought to use his powers as the master of the roster to protect himself from an investigation in the Medical Council bribery case.

As Chelameswar walks into retirement, he leaves behind a court bitterly divided and facing an existential crisis about its role and credibility in the Indian republic. It is not his fault of course, but to him, we owe a debt of gratitude for being unafraid to speak out when it was most needed in an effort to save the court. Whether he has succeeded, we’ll know in some time. Maybe in ten years, when I revisit this piece, I’ll know for sure.

(Alok Prasanna Kumar is an advocate based in Bengaluru, an Executive Committee Member of the Campaign for Judicial Accountability and Reforms. CJAR filed a petition seeking an SIT probe into the medical council bribery case.)

(The views expressed are the author’s alone. The Quint neither endorses nor is responsible for them.)

(This article was originally published on BloombergQuint.)