“Is any political party willing to constitute a statutory body for the CBI, defining its functions, obligations and duties? No party would be! They have different stands for when they are not in power compared to when they are in power”, advanced retired Supreme Court judge, Justice J. Chelameswar on Saturday.
He was a participant in a session titled ‘Caged Birds: Institutions under Assault. Or Operation Clean-up?’ during the India Today Conclave 2019 in New Delhi. Also present at the session, moderated by ace journalist Rajdeep Sardesai, were Former CAG Vinod Rai and Sanjeev Sanyal, the principal economic advisor to the Finance Ministry.
“Sitaram Yechury had moved a private member bill to create a statutory body, which was shot down by the government of the day. Nobody would have it! Everybody wants a flexible organisation! That is the nature of power!…A system of constitutional government is designed on the principle of mistrust, not on the basis of trust between organisations…Nobody is to be trusted!”, Justice Chelameswar continued.
“The very legal basis of the CBI was doubted by the (Gauhati) High Court some years back. It said the CBI lacks legal backing. The judges may be right or Wrong, but this is Too serious a matter and the Supreme Court didn’t find the time to decide it…”, he commented.
On the Supreme Court’s frequent confrontation with the Executive over appointment and transfer of judges, over case observations and over verdicts
Asserting that There is “no great confrontation”, Justice Chelameswar noted that beginning with the American case of Marbury v. Madison (1803), the equation between the judiciary and the Executive has always been so all over the world and an effort on the part of the latter to reign in the former has always existed in every country.
When asked if in such state of affairs, our judges are being compromised, Justice Chelameswar reflected, “That depends on which judge you are taking about. It would vary from person to person…don’t put them in the same class…Some are fiercely independent and some not so much, some are more pliable (‘Some are more bribable?’, Sardesai sought to clarify. ‘some are more pliable, I said’, repeated the judge emphatically)…”
In the light of this reply, when the journalist wondered about the integrity and independence of the judiciary as an institution, the judge cryptically remarked, “draw whatever inference you want from this”.
“You’re being more cautious now, as a common man living in a village, than you were 13 months ago when you were a judge”, ventured Sardesai.
“When I was forthright, some vulnerable gentlemen (veteran lawyers Soli Sorabjee and Fali S. Nariman, as Sardesai pointed out) saw an agenda behind it. Why should I give it to them again?”, Justice Chelameswar responded simply.
On judicial accountability
“At the end of the day, the government has to go back to the people, to get re-elected. But Who will judge the judges? Are they to be completely unaccountable?”, probed Sardesai.
“You are asking the wrong man- I was the dissenting judge in the NJAC case…But Impeachment is the only recourse provided in the Constitution (to deal with errant judges). That cannot be the answer for all lapses. As I said in Justice Karnan’s case, there have to be Other ways to deal with minor problems”, weighed in the retired judge.
On the workability of the Collegium system
“There are problems. That is why I had protested and stopped attending the meetings…After the fiasco over (Justices) Dinakaran and Ashok Kumar, it became apparent that the Collegium system was not working perfectly”, conceded Justice Chelameswar.
Citing an “innocuous” example of a couple of recent appointments by the Supreme Court collegium running into controversy, he reflected, “Everybody was speaking of interstate seniority and All-India seniority, of regional representation, of small courts, big courts. But did somebody discuss what kind of judgments each of them had delivered? Did anyone compare who was brought in with who was not based on the quality of their judgments? No one in the Collegium or the Parliament or even outside at the media spoke of the judges’ views on public issues, their jurisprudential foundations”.
On the press conference of January 12 last year by the four senior-most judges of the Supreme Court being touted as a “revolt”
“For the last seventy years, everyday in the Parliament, when it is in session, somebody has raised questions as to some activity or the other of the government. Is that a revolt? Questioning is not a revolt!”, observed Justice Chelameswar.
“Just because something has never happened does not mean it can never happen. Give me a reason why it must never happen?…At the press conference, we did say that it is the most unusual thing. So We never shied away from that”, the former judge continued, quoting a joke popular in the legal fraternity about Dr. Watson’s character in the Sherlock Holmes, that the man is so precedent-oriented that he married a widow.