It’s been a tumultuous year for the judiciary, the third pillar of Indian democracy entrusted with protecting and preserving the rights of citizens. In the midst of all the frenzied public discourse surrounding the judiciary, one judge of the Supreme Court has stood out for his adherence to the basic principles of democracy – Justice Jasti Chelameswar.
As the second senior-most judge in the Supreme Court collegium, which is responsible for the appointment of judges to the High Court and Supreme Court, Justice Chelameswar has donned the ‘flagbearer of dissent’ role in an institution struggling against a crisis of credibility.
Although he retires on June 22, today was his last day at work since the court breaks for summer holidays.
Unlike other retired judges and civil servants, Justice Chelameswar has made it very clear that he will not take up a cushy post-retirement posting with either state governments or the Centre. As he hangs up his robes after serving nearly seven years as a Supreme Court judge, it’s time to look back at some of the most pivotal moments in his storied career.
Dissent against NJAC verdict
In 2014, Parliament enacted the National Judicial Appointment Commission (NJAC) Act. This piece of legislation was an attempt by lawmakers to reform the existing Collegium system of appointing judges, which many legal luminaries consider opaque.
One of the objectives of the NJAC was to give the government a greater say in the appointments process, and not leave the entire process at the discretion of the judiciary. Unfortunately for the executive, a five-judge Constitution Bench struck down the entire bill with the sole exception of one dissenting judge—Justice Chelameswar.
“To hold that it (the government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said.
In other words, judges are not elected but appointed. Lawmakers are elected, directly or indirectly. Thus, the spirit of democracy dictates that those answerable to the people, i.e. lawmakers, must have a say in the appointment of judges.
However, he would later go on to challenge the executive for trying to subvert the appointments process, initiate reforms to ensure greater transparency in the Supreme Court and even take on the Chief Justice for not abiding by first principles.
Also Read: What is The Collegium And Why is it Causing so Much Debate?
Judgement on the declaration of a poll candidate’s source of income
In February, a Supreme Court Bench headed by Justice Chelameswar ruled that candidates contesting elections must not merely declare their assets and liabilities, but also reveal the source of their income. Even their wife and children must also declare the source of their income.
Under the current rules, candidates are only expected to disclose their assets and liabilities and those of their spouse and three dependents in a document called Form 26, when they file for nominations, but not the source of income.
“The voter is entitled to have all relevant information about the candidates at an election. The information regarding the sources of income of the candidates and their associates (spouse and dependents) would in our opinion, certainly help the voter to make an informed choice of the candidate to represent the constituency in the legislature. It is, therefore, a part of their fundamental right under Article 19(1)(a),” the Chelameswar-led bench said.
In other words, the source of income must also come under public scrutiny to ensure that the public can investigate and verify whether their properties were amassed legally or not.
Also Read: Time For Reform? The Recent Crisis in The Judiciary Has Lessons For Us All
Striking down Section 66 A of IT Act
Upholding the fundamental right of speech and expression under Article 19 of the Constitution, a division bench of Justice Chelameswar and Justice Rohinton Nariman struck down the draconian Section 66A of the Information Technology Act in 2015.
According to Section 66A:
“Any person who sends, by means of a computer resource or a communication device
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”
Section 66A was grossly misused by politicians whose fragile egos had been punctured and by anyone whose ‘sentiments’ had been hurt. The court struck it down, stating “…the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out.”
“What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another,” the bench said. More importantly, the apex court makes a clear distinction between “advocacy” and “incitement”, stating that only the latter can be restricted or punished as per law.
Also Read: SC Says Yes to ‘Living Will’ of Terminally Ill, Passive Euthanasia: All You Need to Know
Right to privacy judgement
Last August, Justice Chelameswar was part of the nine-judge Supreme Court bench, which ruled that all Indians enjoy a fundamental right to privacy. According to the judgement, the right to privacy is intrinsic to life and liberty and therefore falls under Article 21 of the Constitution. Among the six separate judgements written on the case, Justice Chelameswar authored one.
“All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21,” said Justice Chelameswar.
Moreover, “what you eat or wear is nobody‘s business and amounts to intrusion into your privacy rights,” he argued.
He will be missed in the courts and one hopes we see more like him – dedicated to the principles of the constitution.
(Edited By Vinayak Hegde)