Justice Jasti Chelameswar who has retired after his tenure of about two decades on the Bench is one of our illustrious judges and a gracious human being. He is a sound judge without being fashionable or flamboyant. To borrow what was said of a former Chief Justice of US, Harlan Stone, Chelameswar is a judge’s judge whose idiom is of the law. He is well read—a ‘cultivated person’ in the language of Justice Frankfurter.
His retirement will measurably contract the universe of judicial discourse. His contribution to our jurisprudential lore and constitutional ethos has been substantial and significant. He is also one among those who have aspired and endeavoured to live in the world without seeking its approval or flinching at its detraction and to set and live by their own standards and values. Values, said Learned Hand, are ultimate, they admit of no reduction below themselves.
The role of the men of law in the interpretative process in constitutional adjudications is not anonymous. Retirement is a time for appraisal and appreciation. However, there is a dust that follows the flying feat of years which prevents us from seeing clearly the happenings close at hand. Yet some prominences stand out in Justice Chelameswar’s judicial and non- judicial work in the Supreme Court. It is not inappropriate to refer to some of them and their impact on contemporary law and life.
On the administrative side, Justice Chelameswar strove to instill into the working of the Court some transparency, rationale and accountability and bridge the yawning gap between the Court’s precept and practice. How successful those efforts have been is another issue. He brought to bear on constitutional interpretation a fresh, independent and original approach which is likely to have a lasting impact on how men of law approach issues of constitutional interpretation in the future. His endeavours on that behalf have been characterised not by an aimless movement but by “drift with mastery”. He sought to alter the habits of the mind of judges and lawyers.
He never hesitated to take a different view and plough a lonely furrow, sometimes dissenting, sometimes concurring in the result but adopting another line of reasoning. For, judges are there not simply to decide cases but to decide them as they think they should be.His lone dissent in the NJAC case is a marvel of courage, judicial statesmanship and humility. It is marked by compelling logic and robust realism. It is also significant for he tried to understand the nuances of the basic structure doctrine from a fresh perspective.
Alone among his brethren he spoke in a different voice earning him the appellation of a modern Justice Khanna. That dissent and his concurring opinion in the Justice Karnan contempt case shed sufficient light on his philosophy and his clear understanding and appreciation of the problems troubling the institution. His concurring judgment in the Privacy case is another gem. He rooted the fundamental right to privacy in the Constitution itself-its ‘dark matter’ as the source of the power to enumerate rights not expressly provided. He pointed out that by such an approach no violence was being perpetrated on the text of the Constitution, for, it is still the text which acquires the requisite interpretative hues. The judgment in Loki Prahari proceeded on the premise that the citizen, the ultimate sovereign in a democracy must have access to all information that enables critical audit and the making of rational, informed choices; and that the candidate’s constitutional right to contest is subservient to the voters’ fundamental right to know.
A study of his work gives us an orderly awareness of the intensity and many sidedness which have characterised the making of the judgments. To recall some observations of Prof Julius Stone which are apposite in the context: He who has sincerely followed the stirrings of his predecessors and understood their questions and their replies within the limits of their situations will not only avoid their pitfalls but also recognise the more readily a problem of justice and be alerted to the responsibilities of choice which he bears in its solution. Where personal choice cannot be avoided he can be guided to the best alternatives. Further this wider awareness may equip him to preserve a certain diffidence as to the correctness of the choices made so that the judgment stays open for review in future cases as insight and experience grow.
This is a superb sense of humility and unrest which has marked the approach to their tasks of the greatest of lawyers- that “repose is not the destiny of man,” and that the least they can seek is also the most they can win, “an echo of the infinite, a glimpse of its unfathomable limits, a hint of the universal law.” It is not given to any generation to complete the task of human improvement and redemption, but no generation is free, either, to desist from them. Justice Chelameswar has been fully aware of and alive to this vital truth.
It has been observed that it was a strange quirk of destiny that delayed Chelameswar’s elevation to the Supreme Court, consequently denying the nation of his services as Chief Justice of India. But many eminent judges did not become Chief Justices. We recall such illustrious names: Fazl Ali, Vivian Bose, Venkatarama Ayyar, Khanna, Mathew, Krishna Iyer, Chinnappa Reddy. Their eminence was in no way diminished by not being the Chief Justice. It is the same with Chelameswar. Justice Chelameswar leaves behind a rich legacy of acute thinking, a fund of wisdom and pragmatism and above all the courage of conviction. All these qualities put him in a different league—a select band of noble warriors. May his
tribe increase!
V Sudhish Pai
An expert on the Indian Constitution
Email: vsudhishpai@gmail.com