Why the legacy of Justice Chelameswar is not unstained? Answer young law students
         Date: 03-Nov-2018
Justice Chelameswar has been celebrated as the dissenting voice of justice, but a close examination of his career mocks such a claim
-Snehil Kumar Singh, Bhaskar Kumar
 
Justice Jasti Chelameswar, who retiredthis year, had a unique seven years term as a Supreme Court judge often fraught with controversies – judge who ‘rebelled’ against opaque proceedings of the collegium, ordered for Prasad Medical case to be listed before a Constitution bench which had set ‘CJI as the master of the roster’ storm, historic press conference on January 12, 2018 and lastly, the lone dissenter in the historic National Judicial Appointment Case (NJAC) case. Prominent members of the bar had compared him to the likes of Justice H.R. Khanna and Shanti Bhushan had remarked that someday his portrait will hang in the SC next to Justice Khanna’s portrait. Some of the cases will be discussed which demonstrate why his legacy is not unstained.
 
 
 
Violation of Nemo judex in sua causa
Unprecedented events followed in Prasad Medical casewhere a Constitution bench was formed within a day of Justice Chelameswar’s order to annul it.In Kamini Jaiswal v. Union of India(2018) 1 SCC 194,Justice Chelameswar ordered the case to be listed before a constitution bench of the five senior-most judges impliedly excluding the Chief Justice of India Dipak Misra. He exercised the power of the master of the roster for the compliance of the principle of natural justice,Nemo judex insua causa, i.e. ‘no one shall be judge in his cause’ since the case involved a conflict of interest of the CJI Dipak Misra.Arguably, Kamini Jaiswal v. Union of India is one of the defining case where Justice Chelameswar has been inconsistent with his earlier conduct.
 
 
The four senior-most Supreme Court judges who came out in public against the former Chief Justice Dipak Misra in a press conference in January, 2018 
 
One of the most celebrated acts of Justice Chelameswar, dissent in the historic NJAC case is a stark example to quote where he allowed violation ofNemo judex insua causa. Justice J.S. Khehar stood in direct violation of this principle as he was going to be the next CJI yet heard the NJAC case which affected the CJI’s appointment. Justice Chelameswar was also part of the same bench. Given that he had refused to attend some collegium meetings on the grounds of opacity, he should have recused himself from the NJAC case on the grounds that Justice Khehar violated the principle of natural justice. Yet he didn’t do so. However, Justice Chelameswar raised questions against CJI Dipak Misra when he chose to hear his own case. This points towards inconsistency in his actions since he chose to oppose CJI Dipak Misra on the grounds of Nemo judex in sua causa while he supported the same cause in Justice Khehar’s case.
Order that was per incuriam
In Campaign for Judicial Accountability and Reforms v. Union of India(2018) 1 SCC 196, a five-judge bench opined that the Chief Justice of India alone had the prerogative to allocate case to the benches. The SC relied on the reasoning in State of Rajasthan v. Prakash Chand(1998) 1 SCC 1,where it was held that the Chief Justice of the High Court was the master of the roster and held that same must apply proprio vigoreto the powers of the Chief Justice of India. Consequently, order of Justice Chelameswar in Kamini Jaiswal’s case was annulled. This resulted in hue and cry in the legal fraternity with the apprehension that the CJI had misused his office.
One of the most celebrated acts of Justice Chelameswar, dissent in the historic NJAC case is a stark example to quote where he allowed violation of Nemo judex insua causa However, the law regarding the roster was settled much before by the SC in Central Board of Dawoodi Bohra Community v. State of Maharashtra(2005) 2 SCC 673, where a five-judge bench had already said that the Chief Justice of India is the master of the roster in whom vests the ultimate authority of case allocation. Also, the NJAC case has set a precedent where judges can hear their own case. This read withCentral Board of Dawoodi Bohra Community v. State of Maharashtrawould lead to a conclusion that the CJI can assign case to a bench despite it being his own case.Hence, Justice Chelameswar’s order was per incuriam of Central Board of Dawoodi Bohra Community v. State of Maharashtraread with the NJAC case.
Justice Chelameswar also falls in line where norms set by the SC have not been followed by its own judges, his judicial orders have been per incuriam and he has also been inconsistent with his earlier actionsA close analysis leads to the conclusion that Justice Chelameswar’s order was in ignorance of the settled law and hence ought to be annulled. The recourse available to Justice Chelameswar was to make a reference to the CJI to constitute a bench which excluded the CJI rather than doing it himself by means of a judicial order. Thus, Justice Chelameswar has not followed the law of the land laid down by a constitution bench of the SC.
 
A judgement that was never delivered
Justice Chelameswar was part of a division bench along with Justice Agrawal which never delivered a judgement having reserved it for over 3 years. The case involved tariff dispute between two BSES entities, Delhi Electricity Regulatory Commission (DERC) on one side and other entity owned by the Reliance Anil Dhirubhai Ambani Group (ADAG). After trial began in 2010, the judgement was reserved by the bench on March 10, 2015 after full-fledged hearings.
 
Over 3 have passed since without a verdict. Now that Justice Agrawal has retired and Justice Chelameswar retired today, the matter will be referred to the CJI who will have to direct fresh hearings of the case. This goes against the principle of reasonable time in delivery of the judgement and will also waste extremely precious judicial time which could have been used to hear other pending cases. In Anil Rai v. State of Bihar, the SC had ruled that there should not be too much of gap between the date when the judgement was reserved and delivered. It had set a time limit for the High Courts that the parties can seek early judgement if it is not delivered within 3 months after being reserved and a reference to the Chief Justice of the High Court for re-hearing in case of 6 months. Retired SC judge, Justice AK Ganguly was of the opinion that the SC should not take more than 3 months in it.
 
All this said, it cannot be denied that he had been one of the greatest judges in the Indian legal history who fought for the cause of judicial accountability and transparency. However, Justice Chelameswar also falls in line where norms set by the SC have not been followed by its own judges, his judicial orders have been per incuriam and he has also been inconsistent with his earlier actions. Thus, his legacy will not go down unstained in the history!