Jasti Chelameswar on Constitutional Interpretation and Judicial Independence

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, where we examine the academic ideas that can propel India forward. My name is Shruti Rajagopalan, and I am a senior research fellow at the Mercatus Center at George Mason University. 

Today my guest is Justice Jasti Chelameswar, who is a former justice of the Supreme Court of India. Prior to his elevation, he served as chief justice in High Courts in Gauhati and Kerala and as a justice in the Andhra Pradesh High Court. 

We spoke about his judgments on electoral qualifications, judicial conduct, transparency in judicial appointments, the constitutional right to privacy, separation of powers, and how dissent shapes constitutional interpretation, and much more.

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts. 

Jasti Chelameswar, welcome to the show. It is such a pleasure to have you here.

JASTI CHELAMESWAR: Thank you.

RAJAGOPALAN: When I was preparing for this conversation, I realized that you’ve written a lot of opinions on election matters, and they have a similar connective tissue. One is the need for greater transparency in processes relating to elections and more generally democratic processes.

Election Law Cases

In addition, I’ve noted that your view of separation of powers is much stricter compared to many of your colleagues, especially when I read their opinions alongside yours. For instance, the P. A. Sangma case where you along with Justice Gogoi took a very strict view of the disqualification for office under Article 58 (2). Rajbala v. State of Haryana, you again take a pretty strict view of the statutory requirements that the legislature has actually imposed on the question of what are the qualifications required for anyone to stand for election.

When I look at Lok Prahari, it seems like you have a much more expansive view of what is the role of the judiciary because here you almost reinterpreted, to my mind, what was the existing election law to classify nondisclosure of assets as a form of a corrupt practice.

When I read all these cases together, I feel like you have a very strong preference for strict adherence to separation of powers and you’re only willing to trade that off to increase accountability and transparency in the overall democratic process. Does that sound about right? How do you view these cases when you look at them together now in hindsight?

CHELAMESWAR: Yes. If that’s how you or anybody else understands my judgments, I’ll be more than happy. See, ultimately, when we’re talking about democratic governance, talking about constitutional governance in a democratic republic, the most fundamental requirement is that there should be elected government, elected in accordance with certain basic norms. Therefore, transparency and clarity in these matters, in my view, is very essential. That’s been my belief from the beginning. 

You started the conversation saying that, “you have written a lot of opinions on election matters.” Well, I didn’t have a choice. It’s the master of the roster who decides what cases should go before which judge. It just so happened a lot of election matters were heard by me over a period of almost seven years. 

On a personal note, as a lawyer, I handled a lot of election disputes. Therefore, my acquaintance with that part of branch of law is, with pardonable pride, I can say, fairly good. Fairly good. For example, if you remember, repeatedly the supreme court held from 1950 onwards, from Ponnuswami v. Namakkal onwards, that all rights pertaining to election are statutory rights. There’s nothing constitutional about it. Unfortunately, it has become a more of a rhetorical statement repeated by the supreme court—without having any personal disrespect to any one of those judges, because all of them are outstanding judges. It so happened it was not properly debated, and there was no occasion for them to.

Now if all rights are only statutory, there is nothing in the constitution which forms the basis of electoral process in the country, the whole democracy itself is very fragile. I said it to the open court on one of those occasions when I was hearing these election matters, “Is this the real legal position?” 

Mrs. Gandhi, former prime minister of India, and her legal advisers—once again, I remain on the lighter vein when I say it—were not very wise people. In amending the constitution after Mrs. Gandhi’s debacle in Allahabad high court, in my view—you may agree, you may not agree, it’s up to you—in my view, if that’s the real legal position, nothing prevented the parliament from simply repealing the R. P. Act retrospectively. That whole disqualification of Mrs. Gandhi sprang up from an election petition based on a provision of the R. P. Act. Simply withdraw the act retrospectively. End of the story. There’s no need to amend the constitution. Can’t be so fragile, I think.

Now, the point is, I’m not on the merits of Mrs. Gandhi’s case, and what have you. I’m giving an extreme example. Now it was in that PUCL case for the first time, Justice Venkatrama Reddi, one of my peers in the supreme court, incidentally he hailed from the same parent high court, he didn’t elaborate on it. He made a passing observation that the right to contest and right to vote, those are constitutional rights. Though nobody ever asserted, nor did I even assert, that these rights are fundamental rights, but we believe that these are the rights springing up from the constitution. 

Otherwise, Article 326 which talks about the right to vote, subject to X, Y, Z restrictions and so on, it would carry no meaning. Again, every legal document, be it the constitution or a statute or even a contract, every legal document creates rights and obligations. Second thing is, such elaborate arrangement in the constitution, regarding the composition of the parliament, composition of the state legislative assemblies, then the structure of the democracy, the president, vice president, and so on and so forth, speaker, chairman, all these things—if all these things are simply dependent, all these things remain on the statute book, in the constitutional document, but then the rest of the rights to vote and contest have no basis in the constitution, would lead to absurd conclusions. This is what I believed that day, today, and that’s what is reflected in the judgments. This is the understanding of mine, apart from my own humble study of the constitutional law.

I told you I had a number of election cases as a lawyer. While dealing with those matters, these questions invariably became clear in my mind. When I had an opportunity to express my views—ultimately at the bar, whatever the lawyer says is only an argument. Eventually, it becomes a law when accepted by the court. 

Now, I had the first opportunity to go into this question by deciding in the DMDK case, that symbols allotment matter. Of course, my opinion became a dissenting minority opinion. Majority did not agree with me. I gave very elaborate reasons for this proposition, why these rights are constitutional rights, and more sacrosanct; it is not simple law.

Then, of course, subsequently in Rajbala, though it is one of the highly criticized judgments of mine. I know that. In Rajbala, I had an opportunity because my colleague on the bench, Mr. Sapre, agreed with me, with my logic. What I wrote as a dissent in the election symbols matter, the DMDK matter, it became a majority of the judgment of the court. Two judges agreed.

RAJAGOPALAN: Yes. Two judges. You and Justice Sapre.

CHELAMESWAR: Sapre. Hopefully, it is not reversed. I have not checked that. Now, this is the background for all these matters that we were talking about, whether Rajbala, or any one of these matters you mentioned. Similarly, in Pranab Mukherjee’s matter, the court never went into the merits of the allegation. It was dismissed at the preliminary stage. There were various questions, like whether Mr. Mukherjee was holding an office of profit, a mixed question of fact and law. Evidence had to be taken. But on a simple affidavit and without any cross-examination, that question was decided.

Whether he was in fact holding the office on the date of his scrutiny of his nomination because that is relevant data under the election law. If he resigned —these are all questions of fact to be ascertained. You can’t simply go by an affidavit.

However august the office is. In fact, I remember when the former president Giri’s election was challenged, Mr. Giri did appear in person. I still remember, I was a student in those days. Maybe out of respect for the office or out of respect for the age, whatever it may be, the court offered a seat to him as a witness. Mr. Giri politely declined, saying that, “I’m a witness here. I would prefer to stand and answer.” That’s a true spirit of democracy. Now, I’m not saying anything against Mr. Mukherjee, but the way it was dealt, I could not agree with it. I gave my reasons. I gave my reasons.

RAJAGOPALAN: Yes. Your view was not that he actually held an office of profit. Your view simply was we must look into it because it is not a conditional disqualification the way we have in the case of members of parliament or members of legislative assembly. It is a very clean and simple complete disqualification under Article 58(2), which again must be looked at on the question of law and fact. It’s a much narrower opinion that you give. It’s more about the working of the court almost more than the question of how you elect the president. You’re smiling, but that’s how I view the way you wrote that opinion.

CHELAMESWAR: I’ll tell you something. When you’re talking about the working of the court, if you check up the dates, my dissenting opinion, the reasons were delivered much later than the main judgment.

Now, in other words, the other judges did not have the benefit of looking into my opinion. The chief justice thought it fit to pronounce even without looking into my dissenting opinion. The whole purpose of these constitution benches or judicial benches, a multimembered bench, I think, is defeated. Now, it’s possible that all the four learned judges would’ve rejected my logic—not four, only three. Ranjan Gogoi did agree, although he gave a separate opinion. In fact, his opinion was published along with the majority opinion. 

Mine, I was not yet ready, but I requested the then-chief justice to hold on for a few days, but I don’t want to go into further details, but these are facts on record. My opinion was delivered later. Obviously, the other judges did not have the benefit of my opinion.

We are talking about the working of the court. It’s not demeaning the value of the majority judgment, the sense of its binding nature, but the working of the court. Maybe somebody would’ve changed his mind after going through my dissenting opinion if only they had the advantage. 

Then second thing is that coming, once again, to that DMDK matter, that election symbols matter, I gave an elaborate reason. Of course, I don’t want to go into that. There was an earlier judgment of the supreme court dealing with the symbols allotment, that haldar symbol of the Janata Party. The supreme court observed that a party not able to muster a minimum number of votes, a party without following—what kind of a political party is that?—exact language I don’t remember, but something like that.

I said majorities are very transient. Majority is only decided on the issue of the correctness of the legalities. In fact, I recorded in the judgment that Hitler was the greatest democrat, given the kind of majority with which he came to power. If it is only majority which decides the legality or constitutionality of these issues—they’re all transient. Parties which secured tremendous majorities, lost subsequent elections. Take the case of Churchill, the man who was so popular during the war, lost the next election. 

Anyway, the background in which all the above—therefore I always believe that these things require utmost cautious thought before making any pronouncement on these matters. This is the most fundamental aspect of a democratic republic. 

Now when it comes to Lok Prahari matter, there were further questions. It’s not only about a periodic election mela, but we must also have a quality of the representative class. That was a requirement. I suppose nobody would quarrel with me on the proposition. Whether who is good, who is not good, who is the right kind of public leader is the whole thing. 

RAJAGOPALAN: In the case of Rajbala, it’s about educational qualifications and whether the legislature requires that those who are standing for election have a toilet in their house. There were some list of qualifications. Now that’s a set of qualifications, we can quibble any two people, can quibble—

CHELAMESWAR: One second. One second. Remember these are not disqualifications for voting. 

RAJAGOPALAN: Not for voting, for contesting elections. Yes. Absolutely.

CHELAMESWAR: There is a distinction.

RAJAGOPALAN: Absolutely.

CHELAMESWAR: See, incidentally whether they should have a toilet or not, I don’t want to explain, my judgement is there. The question is that distinction between right to contest and right to vote are two different things.

RAJAGOPALAN: Absolutely.

CHELAMESWAR: In fact, somebody attacked me personally, not physically, in a conference that I drew an artificial distinction. But I didn’t understand. See, if the right to vote and right to contest is the same, anybody who is entitled to vote for an election to parliament can become a president of India. For that an additional qualification of age is there. Therefore, they are distinct legal rights. 

RAJAGOPALAN: I think that part is very clear in your judgment. The thing that I find quite interesting when I juxtapose Rajbala with Lok Prahari is—now only talking very specifically about the right to contest, not the right to vote—within right to contest, all the qualifications and disqualifications, what I’ve observed in your opinions across the election cases is you really care about what the legislature says. As long as it’s constitutional, those are the qualifications. 

In the case of Rajbala, the constitutionality you explained as these requirements of educational qualifications or having a toilet and so on and so forth, they are reasonable nexus within the classifications required by Article 14. What I find interesting is when we juxtapose it with Lok Prahari, you are not that strict in interpreting the statute. You give a slightly more expansive view where you equate nondisclosure to mean potentially a corrupt practice.

Process of Writing Opinions

I think that’s what’s interesting to me about these two cases where in one case it’s quite strict and in the other it’s quite open. One potential reason could be you care a lot about the overall integrity or the transparency or accountability of the democratic process, or the other could be simply that you didn’t think these qualifications were unreasonable from your point of view. How are you thinking about parsing out these specifics when you’re actually writing these opinions? What are the discussions you have with the lawyers presenting the arguments or your fellow judges because this is the minutiae which really starts mattering. 

CHELAMESWAR: So far as the discussion with the lawyers go, everything was in the open court, and affidavits. In so far as colleagues are concerned, both Lok Prahari and Rajbala, my colleagues accepted my views after discussion. 

Then the distinction: You say that I was more expansive in Lok Prahari. It all boils down to this. Rajbala, for somebody to contest an election, a panchayati election, a local body election, there are certain restrictions imposed. The question is whether the legislature was competent to impose those restrictions or not, and whether somebody should be an eighth-class pass, or tenth-class pass is a matter of opinion. At least until then, the supreme court consistently held that the substantive due process test is not applicable. Later, of course, Justice Nariman took a different view in another matter. I don’t want to comment about that. 

Second thing, well, just hypothetically, I could deny the authority to the legislature and interpret the statute as I understood the constitution. The question is whether the nexus is so absurd and what is the purpose of the restriction. 

Since you asked what happened in the discussion, when I was hearing the Rajbala’s matter, I asked Mr. Mukul Rohatgi—who was attorney general, who was appearing for the state in that matter, the state of Haryana—I asked Mr. Rohatgi, my initial reaction, of course, was that “there are a lot of poor people in this country. They cannot, maybe most of them, are we not making it a very onerous condition for them to contest an election?”

Then Mr. Rohatgi made a statement, which was not yet on the record. Next day, they filed an affidavit. He told the court rather, “There is a scheme in this country: If somebody wishes to build a toilet, the government will give a grant. It started sometime in the 1980s. Starting at that point of time, it was 500 rupees.” I remember his words, “We are not talking about a five-star toilet in a five-star hotel—a functioning toilet.” 500 rupees. At the point of time when we were hearing Rajbala’s case. The grant, if I remember right, I think I recorded it in the judgment, it is 12,000 rupees. It was a grant. It was not a loan if somebody wishes to build a toilet.

In fact, I asked Mr. Rohatgi. “Mr. Rohatgi, I’m a judge of the supreme court. Until you mentioned it, I didn’t know about the existence of this scheme. How many people in this country would know this?” Some officer was briefing Mr. Rohatgi, sitting behind, some officer of Haryana. He jumped up and whispered something into Mr. Rohatgi’s ears.

Then Mr. Rohatgi told me that, “My lord, I have been informed that a substantial number of people have availed this benefit of this grant.” Then I said, “Can you file an affidavit explaining the details?” Next day, an affidavit was filed by the state of Haryana. This is subject to correction. I think I recorded all this in the judgment, not the conversation part of it, but the content of the affidavit. There were some 8 lakh below poverty line households in Haryana. Some 80% of those households had availed this benefit, this grant from the government. They filed a sworn affidavit. I don’t think anybody would give a false affidavit on that. Now, after availing the facility, whether the beneficiary really built a toilet or used it for watching movies or some other thing, I am not concerned. You can say the legislature took all these things into consideration and made a law. 

Now, suppose similarly coming to the educational qualifications. In fact, I very deeply thought about the patterns. Suppose if the legislature has the right to impose such restrictions, what is the reasonable condition is a question. Suppose the legislature were to say that anybody who is aspiring to contest the panchayat elections has a PhD. Could it be approved? Or only Nobel laureates could contest a panchayat election?

It becomes an impossibility because no election can be conducted, that kind of extreme cases, no. Obviously, no. It is not a question of due process, invocation of due process, rather it is simple [question of] rationality having regard to the situation. Prescribing an eighth-class qualification—now, educated people are more responsible in conducting the public affairs or not is a matter of opinion and value judgment. I do not want to go into it. Is it within the power of the legislature or not was the only question available. I did not see any unconstitutional exercise of power. And, my colleague agreed with me, but I know it was one of my very bitterly criticized judgments, I know.

RAJAGOPALAN: When it comes to Lok Prahari, how come you don’t interpret nondisclosure in as simple or strict way? Why does that have to be read in along with other kinds of corrupt practices or the context of what is happening in the country?

CHELAMESWAR: Reason is simple. In Rajbala, there is a statute. Lok Prahari, there is no statute. If you check up the judgment, at the end of it, I said the election commission’s power to make regulations and this thing, rule-making power under the R. P. Act, that could be invoked to make appropriate statutory backup for this thing. I was not legislating there. And then there were two earlier judgments about dealing with these things, this question, the disclosure of assets and liability. This is the next step. It’s not that I was inventing new law, it was already a law declared by the supreme court. Where was the requirement earlier in the law? It was not there. It was after interpretation of the constitution and the relevant law, the supreme court had [gone into] did the public have a right to know what or who are these people who are contesting?

See, for example, it is people’s choice. I don’t want to name somebody who’s dead and gone, a particular chief minister was held guilty of corruption. Election was gone. The chief minister went to jail. In a consequential by-election to that very seat, a candidate fielded by that particular chief minister won with some extraordinary, some 5-6 lakhs majority. People still want to vote to that party or that particular leader. It is the people’s choice.

If you remember, Winston Churchill used to say, “I would rather believe the foolishness of the people than the wisdom of unelected judges.” He also cautioned people who want to vote for such people, they have a right to vote. But that does not make folly wisdom, he says. 

Misconduct of Judicial Officers

RAJAGOPALAN: Speaking of unelected judges, I want to talk about two very important constitutional bench cases where, in one instance concurring, and in one instance dissenting opinion has set the stage for this debate. The first is In Re Justice C. S. Karnan, which was quite an unfortunate thing that was going on. As you point out, there’s no real mechanism that we have within our constitutional structure, other than impeachment to deal with severe misconduct of a judicial officer at the high court level.

CHELAMESWAR: One thing, just before you come to the question. Let us be clear about it. I never said the conduct of Karnan prenotice stage as misconduct. He never entered his defense. He refused to argue the matter. In fact, I repeatedly requested Mr. Karnan from the bench, “Please, enter your defense.” He said, “No.” The man was very dramatic. It is unpleasant to recollect these things.

I personally requested from the bench, “Please, enter your defense.” That I recorded in the judgment, what was the objection about that man, that he made all kinds of allegations against his own colleagues, his chief justice of that high court, so and so. He wrote letters to the president, prime minister, and all of that. I observed that if somebody believes that a chief justice or a judge is doing wrong things or corrupt, who else will the citizen go and tell except the president and prime minister of this country? Whether the allegations are true or false, these are all matters to be enquired into.

All that I stated in that case, me and if I remember right, even Ranjan Gogoi, his post-notice conduct, he went on issuing orders, purporting to be judicial orders, sitting in the high court, restraining the bench from proceeding with the matters of court. In the hierarchy of the system, if the high court starts issuing these kinds of orders, it is nothing but interfering with the judicial process. That’s what I found contentious, not his alleged conduct prior to that.

For your information in a lighter vein, that man issued about after my retirement, two, three notices saying that I’ll impose penalty of 2 crores on me to pay.

RAJAGOPALAN: I think it’s quite clear when I read your judgment and the overall judgment on how complicated it is to parse out the misconduct of any judicial officer, especially someone like C. S. Karnan. There were lots of things going on. Right? Things he said as on the bench, things he said in court, things he started writing in letters, and so on. I don’t want to get into that.

The very interesting part of that opinion to me is you almost anticipate what is going to happen with the higher judiciary in the next 10, 12 years. You very clearly specify that there needs to be some, not just a code of conduct, but a mechanism to deal with misconduct when it falls short of impeachment. 

CHELAMESWAR: Well, misconduct may be too strong a word. Of course, it can be a case of misconduct also. Too strong a word. Conduct which is not consistent with the dignity of the office. Well, this is once again a matter of opinion. The people who believed that when I held the press conference, it was not consistent with the dignity of my office. There can be views and views about it. There are views. I know. Very big. Eminent. Big people think that I should have not done it. These are all matters of opinion. Misconduct perhaps is too strong a word in the context. 

RAJAGOPALAN: Well, they did hold him in contempt. I mean, the bench, this opinion held him in contempt.

CHELAMESWAR: I know. I’m not talking about that that particular case. For example, let us say a particular judge, he is absent three days a week from the court. Maybe he is within the limits of his available leave and things like that, but consistently. It may not be misconduct, but it is something which requires to be addressed either by counseling or maybe in a given case, he has some genuine health problem. Everything need not be misconduct. The word has a certain amount of odium attached to it. That’s what I’m saying.

RAJAGOPALAN: No. I think that’s a very fair clarification. Now, if I limit myself, let’s say, to misconduct and not to these gray areas, you really anticipated this problem of corruption within the judiciary, which lots of speculations and instances that does take place.You tried to warn us in the Karnan opinion that we need a system.

CHELAMESWAR: More neutrally, the system might get into trouble. That’s what I said. What kind of trouble? Well, what happens when the system gets into trouble? What will happen to the republic and what will happen to the people and constitutional governance is a matter of consideration. That’s what I said.

RAJAGOPALAN: Yes. You also said something important, which is that the correction must come from within. The correction must be preemptive. I think that’s the part that I want to get into here. In the Karnan case, which comes before the NJAC amendment or the opinion and your dissent and so on, you’re like, “Look, this is a problem, whether it’s a single case or a recurring matter. We need some system to deal with it. We have a particular institutional framework of judicial independence. If we are responsible officers of the court, then within that particular framework of judicial independence, the sunlight must come from within, so to speak.” You’re quite clear on that in the Karnan opinion. 

NJAC Opinion

Now, I want to come to the NJAC opinion and the dissent. There, the dissent, actually, I mean, this won’t surprise you. It’s one of the favorite things that you have written that I have read and really appreciated because you parse out two, three things very clearly. One is that there’s a difference between judicial independence being part of the basic structure versus one particular method of appointment being part of the basic structure. I think this is a very important constitutional distinction, and it gets conflated all the time.

That part of it, can you walk us through, is this a genuine conflation or are people just hand-waving so as to keep things within the judiciary? Your view seems extremely reasonable when I read it that there’s more than one way to achieve judicial independence. This collegium system, which has been read in through a couple of court cases in the ’90s cannot possibly be the only way. We did appoint judges before that, and we can’t go on to say they weren’t independent.

Why is there this conflation in the judiciary? How much of it is just self-interest? How much of it is genuine fear of executive interference? What was happening when all of you were debating and writing that NJAC judgment?

CHELAMESWAR: I will confine myself to my opinion. If you read it carefully, I’m sure you have read it, it is sought to be interpreted saying that I tried to support the government. It was an amendment passed unanimously, except for one vote, by the parliament. It was not this government and that government. It was the parliament, unanimous, except one vote of Mr. Ram Jethmalani. The politicians are such people, in every political party, they talk whatever is convenient to them.

Just in this context:The Puttaswamy judgment was delivered. In fact, all the trouble started—initially, it was listed before me. I had it in a bench of three. I referred it to a larger bench. You remember that story?

RAJAGOPALAN: Yes. Kharak Singh and everything.

CHELAMESWAR: Kharak Singh and everything. Finally, nine judges reference also was made by me. Then nine judges sat and we wrote the opinion.

The privacy judgments started with this Aadhaar and the proposal. With that the privacy question cropped up. The whole bill was voted by a political party which was in power earlier. The political party which came to power later, which is still continuing in power, pushed through that bill. It was the attorney general who argued before me, before the three-judge bench that there is no fundamental right of privacy under the constitution, based on a stray observation in Kharak Singh. He said there is no fundamental right.

Eventually, the nine-judge bench declared there is a fundamental right, the interpretative process by which each one of us wrote a different opinion, but the conclusion became clear. You check up the papers the next day, both the political parties claimed that their stance stood vindicated. This is how they can talk. You can check up the newspapers the very next day after the judgment. Both political parties, the party which voted the Aadhaar bill, initiated, and the government which opposed tooth and nail the assertion of privacy as a fundamental right.

Kharak Singh, if you remember, was eight judges. For some vague reason, in those days, there were few cases written by benches consisting of even numbers. There are some judgments which were written by four judges, Kharak Singh was eight judges. It must go before a nine-judge bench. That was the argument of the attorney general.

I joked with my colleague on the bench with me on that day, Justice Bobde. “Thank God he is not asking for a full court. Because when Kharak Singh was written, it was the full court. The strength of the supreme court itself, thank God the AG is not asking for a full court.” 

RAJAGOPALAN: This is super interesting. I do want to discuss the Puttaswamy judgment in enormous detail.

CHELAMESWAR: Therefore, NJAC, I never said hand over the appointment process to the government. All that I said is earlier judgments experimented with the constitution and created a system of collegium. There also, what was done by the supreme court, if you read the earlier judgment, the Supreme Court Advocates’ case 1993, Justice Verma said, “We are only trying to formalize an existing practice. Every successive chief justice had consulted his colleagues. Any conscientious chief justice should consult his colleagues.” Suppose I come from a particular state, recommendations are coming from another state. Even if I were to be the chief justice, I may not know mostly about the candidate. Wisdom requires that you consult somebody who comes from the same state as the name recorded, a sitting brother about this name. That’s the only way [to] ascertain.

That’s what the successive chief justices were saying. That’s what Justice Verma wrote. As a matter of fact, it was happening. In the earlier changes, it was about whom to consult. Now the judgment says consult the first four initially, later became five, you remember all that. They said put it on a more concrete basis. Instead of leaving it to the exclusive discretion of the chief justice.

Then that experiment, it was the unanimous opinion of the parliament, it didn’t work well. I shared that opinion. Well, I don’t want to go into the details now. There are questions about how the system worked in implementation. If you remember, Justice Verma’s judgement, all this experimentation, he said it’s not to be conducted in the spirit of winner takes all. It’s a joint effort by both the executive and judiciary to find out the best for the bench.

In how many cases did it fail? Not that every time it failed, but a number of cases it failed, not the best were picked up. I can give you a number of instances. That’s not the point.  Now, an alternative model is proposed by the parliament sitting as the constituent assembly. Still the judiciary had three votes out of six. The old second judge’s case continues to hold the field. Any two determined judges could stop the elevation of an unwarranted candidate. Maybe none of them could have brought their own kith and kin because there are others—but stalling, any two judges could stall if they honestly believed that the candidate is unworthy.

I didn’t find anything wrong with it. In fact, the whole thing was about the participation of civil society and two members nominated. Repeatedly, Justice Kehar asked a question, “Who are you going to nominate?” The attorney general refused to comment. Now [for] argument’s sake, I didn’t say this, but for argument’s sake, if the nomination needs to be made by whom—the government, leader of the opposition and chief justice, three people—if you’re not willing to trust anybody in the country, you won’t trust the wisdom of the prime minister, you won’t trust the wisdom of the leader of the opposition, you won’t trust the wisdom of the chief justice. “Oh, no, no, they’ll nominate all kinds of people. Therefore, it’s detrimental to the institution.” I said this is totally illogical. I don’t think any system can work with this. Therefore, I see nothing wrong.

No system can be perfect. Democracies are always experiments.

RAJAGOPALAN: For me, more than the perfection part, what I find really baffling about the NJAC cases, it’s a fairly narrow question, whether a particular constitution amendment fails the basic structure test or passes the basic structure test. What is included in the basic structure in this particular instance is judicial independence.

To me, it seems like four of your colleagues said that the only way to achieve judicial independence is if the judiciary is, in some sense, self-appointing, as it has been for a while and has primacy, seems a little bit strange. What I mean is when I read your dissent, it seems very odd that that’s the dissent. Why is that conflation taking place?

CHELAMESWAR: That is the law declared by the supreme court. You and I are bound by it. What do we do about it?

RAJAGOPALAN: No. Not what do we do about it, but why is this going on in the court? Is it just naked self-interest, in which case, I am an economist. I understand that very well. I understand naked self-interest and wanting to appoint kith and kin, and I’m like, “Okay. That’s why the system is going the way it’s going.” Is it a particular kind of paranoia? Is it being triggered by Emergency? Why is there this conflation?

CHELAMESWAR: One second. I don’t agree with that. Each one of them motivated to the idea of picking up their own kith? No. I don’t even attribute it to that, not that the situation is so bad. The point is, as I see it, the amount of peer pressure, a very eminent counsel, a battery of senior eminent counsels appearing and saying, “Look, this is going to destroy the institution,” so on and so on. Somebody who had argued the second judge’s case and wrote later, a case which I argued and won and lived to regret, turns back, and says, “No, that should continue to be the law.” 

At least I can say this much. Mr. Jethmalani—whom I hold in very high regard—in a couple of cases, I worked with him, I really admired his capabilities and his independence. He said the presence of the law minister is deleterious to the independence of the judiciary, that was the summons of—the law minister was one of the members of the NJAC.

I asked him in the court, “Jethmalani, you yourself were the law minister at some point of time, what are you saying?” Of course, he said something which I don’t want to repeat. The whole thing, it went beyond all logic. It was personal beliefs and personal horrors which played a greater role in these arguments and conclusions.

RAJAGOPALAN: That actually I find more disturbing than my interpretation. Because my interpretation of naked self-interest, because then you can understand what’s going on. This just seems like some groupthink or clique or club that is impenetrable. That seems so bizarre to me.

CHELAMESWAR: See, there is a lot of confusion, I don’t want to use any other expression. You remember that other case about judges, that letter of the law minister which triggered off the litigation?

RAJAGOPALAN: Is this S. P. Gupta?

CHELAMESWAR: Ah, S. P. Gupta. I am becoming old, I am forgetting things now. Then the law minister wrote a letter asking the chief justice to—the argument before the supreme court is, then of course, this whole argument of the independence of the judiciary is a standard story. One argument is the fact that the constitution mandates consultation with the chief justice, that is the greatest safeguard to the independence of the judiciary.

Justice Bhagwati, who later became the chief justice, was a legend in his own lifetime, he wrote, however exalted the office, it is not a guarantee for the independence. He said all the 16 transfers of the Emergency were in consultation with the chief justice. The whole nation went on shouting, post-Emergency, it is all vindictive activity by the then government. That’s what Bhagwati wrote. There is no guarantee. The office may be exalted, but the mere fact that the chief justice consulted is not necessarily an insurance of the independence of the judiciary. 

RAJAGOPALAN: No, to me, it honestly seems like groupthink because it seems very odd that yours is the dissenting opinion. The whole thing seems a little bit strange to me. The other reason I think it’s a bit clubby or cliquey is, you’ve also been excluded from a number of benches after some of your famous dissents. I’m not the first person to observe this, nor have you spoken about it, but other people have written about it.

CHELAMESWAR: I still get my pension, mercifully. It makes no difference to me. I wrote judgments in whatever cases came before me.

Fundamental Right to Privacy

RAJAGOPALAN: Let’s switch to Puttaswamy, which is, I think, a really important case of your career, and has had enormous implications after. In terms of background, as you already mentioned, this had to do with Aadhaar, what started as a pilot project and then ended up becoming a much larger project that would cover all of India. It started originally as a welfare-enhancing scheme, that is a way to make sure that the correct recipients got their benefits, but of course, very quickly went beyond that realm because the technology was so powerful and the platform was so powerful. You are the person who referred it to a larger bench and Puttaswamy was a nine-judge bench.

My first question is, at the core of it, it seems like all of you agree there’s a fundamental right to privacy. There’s no dissenting opinion in Puttuswamy.

CHELAMESWAR: No, fortunately not.

RAJAGOPALAN: There are lots of concurring opinions, right? What exactly goes on during these discussions, in terms of, what are the nuances that you agree or disagree on that there must be so many concurring opinions?

CHELAMESWAR: It was not much. There was only one meeting, and then there were those who were inclined to write, expressed their desire to write. Every judge has a right to speak for himself. Any time a judge says, “I want to write my own opinion on the matter,” it will be circulated and examined later, but that’s a different story. Afterward, there was no discussion.

RAJAGOPALAN: To me, there are three really important opinions. There are lots of concurring opinions, but one is, of course, Justice Chandrachud who wrote the majority, then there is Justice Kaul who wrote one of the concurring opinions and you who wrote one of the concurring opinions. To me, these three put together have set the stage for what comes after. 

The way I interpret Justice Chandrachud’s opinion is it’s setting the stage of privacy in a very expansive way because they’re anticipating what is on the docket after this. We know there’s Johar coming after this. There are these other Aadhaar cases coming after this. There needs to be this catch-all sense of how broad can we make the right to privacy. That’s how I interpret that particular opinion. You’re smiling, but that’s how I think about it.

CHELAMESWAR: What is it you want me to do, you want me to cry?

RAJAGOPALAN: Of course, there is the three-pronged test that Justice Chandrachud set. I don’t want to be uncharitable. There’s a very clear test of the legislative aims, the proportionality, and so on that he outlines. Justice Kaul, he creates a four-pronged test instead of a three-pronged test and I don’t want to go into that minutia. He is really thinking about what the technology can do. At least, that’s how I interpret his concurring opinion. To him, this is a new technology that both the legislature and the court are facing. The old methods of protecting fundamental rights and privacy may now start faltering unless we have clearer lines when faced with this new and very powerful technology. That’s how we need to think about the checks and balances. 

Yours, I found completely different in the sense that you are, if I’m not wrong, the only person or at least the only person to say this strenuously among all your colleagues on the need for the legislature to resolve this in some meaningful way. You’re very clearly stressing that we can’t make this up as we go along. There needs to be a legislative framework. You anticipate the Aadhaar Act, and, of course, the DPDP which is now followed since then, and so on, so forth. 

But you have also managed to give us a test on how you would judge that statute when it comes to pass. You lay out what would be the restrictions under 14, what would be the restrictions under 21, and so on, so forth. One, it just seems quite different from what the others were doing, so if you can comment on that. Two, what were you thinking? What were you anticipating? Clearly, all of you are anticipating different problems. That’s the question I have now that I have the opportunity to speak with you.

CHELAMESWAR: I can speak for only myself. See, there is a little background to this. Essentially, I was a student of physics before I entered the law college. Of course, I was a very bad student of physics, therefore I strayed into law. Otherwise, I would have pursued this thing, but nonetheless, I was still a student of physics, the basics of physics I knew.

The second thing is, if you recollect, I was a member of the bench which declared that 66A of the Information Technology Act was unconstitutional. Justice Nariman wrote the judgment. In fact, I heard that case twice over. Initially, I was sitting with Justice Bobde. Then the summer vacation intervened, and the bench broke, and then the new bench came.

Once again, I had to hear it again, twice over I heard. A lot of younger generation lawyers argued that matter. Senior advocates came and, of course, cited Harvard and supreme court judgments. The nitty gritty of the technology, that was certainly not for people of my age. It is all Greek and Latin, but the younger generation of lawyers had better information and better knowledge about this technology, interfacing with technology.

I heard those things. When we were hearing the matter of 66A, some senior advocate was making some submissions—I don’t remember exactly what aspects—but it had implications on technology. The senior advocate was arguing. A young girl, somebody like you, was sitting in the second row. When the submission was being made, she was violently swinging her head in disapproval of what was being submitted to the court.

I noticed it, and I stopped the senior counsel and asked that girl, “Apparently, you are not approving the submission.” Then she panicked because suddenly the court asked her. I said to her, “Don’t panic, nothing is going to happen to you. I do realize that you are not in agreement with them. He maybe a learned senior counsel and he may be right, but I would like to know what the youngsters know about this technology.” Then even Justice Nariman said, “Yes, yes, come on, tell us what is it.” She came up and she gave inputs on the technology and from that point of view how this submission may not be correct. This is the background. 

RAJAGOPALAN: Do you remember the name of the young lawyer? This is Shreya Singhal case, right?

CHELAMESWAR: It’s Shreya Singhal case. Some young lawyer. Hardly two, three-year-old at the bar perhaps. 

RAJAGOPALAN: No, just curious.

CHELAMESWAR: Now all these were working in my mind. Second, of course, my own general reading. Did you read Noah Harari’s 21 Lessons for the 21st Century?

RAJAGOPALAN: I’ve read his other books, but I haven’t read that one.

CHELAMESWAR: Please read.

RAJAGOPALAN: Okay.

CHELAMESWAR: He says artificial intelligence and biotechnology revolution is going to change the world. By 2050 it will be impossible for us to imagine how this world is going to be. Fortunately, 99% I won’t be there. Even if I am alive, I’ll be 97 by then 2050. Hopefully I won’t be there, but you people will have to face it. He gives examples on how it’s going to be.

He just gives one example. He says driverless cars will become a norm by 2030 or ’35. It will become a norm, he says. Then what happens, the consequences, some of which he gave: Driving as an occupation becomes redundant, that will result in a lot of employment problems. A lot of illiterate boys and girls nowadays at least become chauffeurs. That option will be gone. That can create innumerable other consequences: unemployment and whatever consequence.

Apart from that one more thing he says. Somebody is driving a vehicle on the highway at high speed, and he notices a child crossing the road at a distance, let us say, half a kilometer away, and the car has four people in the car. The driver’s mind makes a calculation as to whether the car will hit the child with the speed at which the car is going. There are a number of imponderables in this. The child might suddenly change course. These are all questions which the human mind calculates and takes its own decision. 

One question is, will it be inevitable to hit the child if according to the human mind’s calculation there is no way of stopping, unless applying a sudden break which may result in the parting of the car, killing all the people within. One life against four lives. One life of a child and four old people like me. The answer to this question depends on the ethical value system of the driver. Now, in a driverless car, it depends on the program written and who wrote the program and the person who wrote the program for the car’s computer. This leads to complicated lawsuits. Just imagine. 

RAJAGOPALAN: In your opinion, again, Puttaswamy case is really long, so forgive me if I’m misremembering some small details, but you’re quite specific on the concerns you have. You very specifically say people have the right to privacy and no infringement in terms of what they eat, who they associate with, and their immediate life, and so on, so forth.

CHELAMESWAR: Most basic aspects of privacy.

RAJAGOPALAN: You are not expanding and going into some futuristic world where technology can damage us in any particular way. It seems like the thing you’re most concerned about is some low-level state surveillance and any potential misuse because of state surveillance. The concerns you just mentioned about private parties and their ethical complications, I see a little bit more of that in Justice Kaul’s opinion. He’s a little bit more concerned about private parties.

When you were talking, in your opinion, what are some of the big surveillance concerns you have when it comes to privacy? Because your other brothers were mostly talking about privacy in terms of dignity and agency and a slightly different view and here, you are very clearly talking about what are the restrictions or boundaries within which one simply can’t interfere with an individual. What were the things you were worried about? Is it cow slaughter ban and people getting lynched for eating beef? What’s going on?

CHELAMESWAR: Not specifically, but maybe each one of these factors must have worked on my mind. Even judges are not immune from all information. Each one of these pieces of information must be working consciously or subconsciously in their mind. Some of these things are the most fundamental things. What I eat is my choice. Having concerns of health, where the state can impose this is not healthy food—that’s a different story. 

But for other reasons—suppose somebody were to say, “I don’t like you eating chicken.” Somebody were to tell me “You don’t eat.” I will say, “What? Who are you to tell me?” What are the most fundamental activities of a human being? Food is one thing and second thing is certain personal preferences. Whether I want to wear a shirt and pant or a dhoti or a jubbah. If you are entering an armed service, then you are subject to discipline. You don’t enter, otherwise. 

RAJAGOPALAN: No, but what’s the connection between the kind of surveillance you were worried about when it came to Aadhaar and these questions? What was that concern?

CHELAMESWAR: The concern is this, the submissions made, and the potential that it could give. For example, one of the arguments if I remember it right, Shyam Divan, subject to correction, said that tomorrow when surveillance is permitted for whatever reason, the minute you switch on your mobile phone everything is recorded. What time you woke up. What call did you make? Then the minute you get into the car, it is recorded where are you headed to? How many check posts did you cross? All this information was placed before the court. They said these are all the possibilities. Effectively, nothing would remain private, your activity. Of course, classical argument is if you have nothing to hide, why are you so worried about it? It’s not that. I have nothing to hide. I just don’t want to disclose.

Even if there is nothing illegal or immoral or obnoxious, I would still like to be a private person. Why should anybody know about it? Why should the state know about it? Why should anybody know about it for that matter? You won’t like to disclose certain things to your own parents, your own partner in life, your own children. I’m not talking about the morality part of it. There are always things which require some kind of [privacy]. Therefore, anything which gives an unlimited access to the state and its authorities to see through your personal life would be inconsistent with the constitutional guarantee of privacy.

RAJAGOPALAN: Have you had a chance to look at the DPDP law?

CHELAMESWAR: I retired seven years back. I don’t have any good reason to look into all these things.

RAJAGOPALAN: No, it seems like you anticipated that that should follow and it has followed.

CHELAMESWAR: That something like this is going to come, I had some idea about it. In fact, a lot of people in those days, youngsters, unknown people sent me mails saying this is going to happen, that is going to happen, those people who are working with these things. Lot of people sent it. Lots of information. Most of which maybe I didn’t fully grasp the implications of that information, but a lot of information.

In fact, some student, who’s in Oxford I think at that point of time, who had earlier clerked at the supreme court, not with me, but some other judge. She got to know I was on the that bench. She sent me a paper which she penned dealing with some of these aspects of privacy. A lot of people like this. Neutral material.

RAJAGOPALAN: Mariyam Kamil?

CHELAMESWAR: Yes, I think. Now that you have mentioned the name. She clerked with Justice Kabir. See, normally every time, every judge gets a lot of warranted, unwarranted information comes. People send anonymous letters, pseudonymous letters, all kinds of things. In this case, it’s neutral information from informed sources, people who are serious about research.

RAJAGOPALAN: One other aspect in your judgments that I want to pick on is again it’s unfortunate that they should set you apart from others. I would think this is the norm. Again, this adherence to procedural fairness, right? I see this in your opinions across a number of different cases. Whether it is not a constitution bench, but I’m talking about the Tamil Nadu MLA suspension. You somehow manage to walk that line of staying within the realm of separation of powers and the judiciary must not intervene in legislative matters and the power of the speaker and so on. There has to be very clear adherence to procedural fairness and videotapes must be produced and so on.

CHELAMESWAR: Naturally.

RAJAGOPALAN: You say naturally but no one else is writing these opinions.

CHELAMESWAR: What do I do about it?

RAJAGOPALAN: This will now become a little bit rare, right? We don’t see procedural fairness, opinions, we don’t see the strict interpretation opinions anymore.

CHELAMESWAR: No, remember, see, all administrative law which we study very passionately, what is it all about? It’s about procedural regularity.

RAJAGOPALAN: I guess what I’m asking you is what is happening to Indian jurisprudence, especially the way it’s playing out in the supreme court, that we are moving farther and farther away from the core principle?

CHELAMESWAR: Shruti, without meaning any offense to anybody, I think the employment of the word jurisprudence in the context of the Indian judicial system: What is the big jurisprudence? Please, tell me. No. I’m serious. I’m serious about it. See, the law of precedent, let’s take all the simple problems of jurisprudence. 

I’ll tell you something which happened in the court. I was a young lawyer. I was appearing for the then-chief minister of combined Andhra Pradesh, late Mr. N. T. Rama Rao, in an election petition. The election was of 1983. A lot of things happened in the next two years in Andhra Pradesh. His government was pulled down by somebody and then again, he came back, and then Mrs. Gandhi died. Then there was a Lok Sabha election followed by another assembly election of ’85. Within two years the assembly was dissolved. It is all part of recorded history. Challenging his first election in 1983, there was an election petition. I was the advocate on record for the chief minister Mr. N. T. Rama Rao.

We decided we’ll have a senior advocate for trial and argument. I raised a preliminary objection based on Karunanidhi v. Hande, 1983, supreme court judgment. The proposition is that true copies of the election petition must be served on the respondent. What is a true copy is the question. In my opinion, that particular election petition copy served on the returning candidate N. T. Rama Rao was not a true copy of what was filed in the court. I raised a preliminary objection, but before the objection could be decided, a lot of things happened, and then one judge before whom the election matter was listed retired. A lot of things happened. Finally, it ended before some other judge. By then that assembly was dissolved.

Then the judge asked me do I have to really try this matter, as that assembly is over? I conceded, “You’ll have to try the case because there is an allegation of corrupt practice. You proved the man is liable to be disqualified.” I conceded. Then the judge said, “Yes, fair enough.” Then I had my own doubts because the disqualification was automatic prior to Mrs. Gandhi’s amendment that time, 42nd amendment. Six years. Now it is discretionary in the hands of the president and election commissioner. There is nothing like a compulsory disqualification.

He had a doubt about it. He said, “I will order notice to the attorney general.” I said to him, “If that’s the court’s choice.” The court ordered notice to the attorney general. Mr. Parasaran came after a couple of adjournments. He was busy, he came. Forget about what transpired—and finally he also told the judge, “You have to try it. There is no choice.”

Then at the end of it, the judge asked Mr. Parasaran, “There is one more question I want to ask you. Mr. Parasaran, two judgements last year, one in Karunanidhi, one in Madan Mohan, the same year, 1983.” Madan Mohan was former health minister of Andhra Pradesh state. The judge said, “Both the judgements, I have found a huge conflict on the same proposition of the law. What am I supposed to do sitting in the high court when the supreme court hands over two judgments in the same year which are contradictory to each other?”

Then Mr. Parasaran gave a devastating answer. He said, “Your lordships are very lucky. There are two judgments before your lordships to choose. More often I am confronted in the supreme court with a situation nowadays where I rely on the earlier part of the judgment and my opponent relies on the latter part of the judgment.” He said it in the court as the attorney general. What is the jurisprudence you are talking about?

This was in 1983. Parasaran is still there. The judge is no more. He passed away. I am there. Mr. Parasaran is still there. I don’t know whether he remembers this incident or not. You can check it out.

Death Penalty Matters

RAJAGOPALAN: One other case where you wrote this dissent. This is Mohd Arif. This is the death row case. Again, when I start looking into it, it seems a little bit odd because it’s a very narrow question, right? The narrow question is whether it can come up again for review. Typically, these reviews come up before the same bench that decided the original case. The very narrow question is, does it have to be held in open court or is it an oral proceeding in the office or the chambers? This became quite a big deal. These are enormously long opinions written by your colleagues and you are again the dissent in this.

What is it that the others were concerned about? Is the major concern or panic that the judiciary is now just so overloaded? There’s so much pendency and death row cases in particular, we should just never be wrong. If we have to break procedure or precedent and err on the side of caution, then that’s the way we go. I’m not able to coherently understand what their fear is jurisprudentially or emotionally.

What was going on at that time? Because your opinion is extremely clear. Basically, your opinion is, “Do as we have always done.” That’s it. That procedure seems to have functioned just fine. There’s nothing new that you can add by adding one more review process in this particular instance.

CHELAMESWAR: There was one question. That rule which required the reviews to be heard in camera was challenged and upheld by none other than Justice Krishna Iyer. Perhaps, I don’t think anyone is more liberal than Krishna Iyer. At least that’s my view. You may have a different view. He gave reasons. Point is, as I mentioned in the judgment, first of all, there is no right of appeal in death penalty matters, barring a case where it’s a reversal of the trial court’s acquittal. There is no constitutional right of appeal. By way of a special leave petition, you come here, two judges hear the matter, decide, and then a review. 

What is all this? You are not willing to trust anything. If you are so suspicious about the quality of the hearing by your own colleagues earlier, then what you should do is check up your recruitment policy, not a review, open court review again. Then what they said? Three judges, three judges. If I say this today, they’ll pounce on me saying, “Oh, this man is pointing fingers at the court.” What does it mean? You are creating an intracourt appeal.

RAJAGOPALAN: Yes.

CHELAMESWAR: In which case, they can amend the rule. Nothing stopped the court from making a rule saying that, “Okay, let all these matters be heard by five judges, or seven judges.” If they think that seven judges’ wisdom is better than two judges, wonderful. Nothing wrong with it. But why this process of review? Then finally what happens? Pendency increases in all this.

A few weeks back, somebody sent a WhatsApp message to me, giving the whole story of Arif’s case. In 2002 or 2003, the incident took place, how many years it took for the investigation, trial, and for the supreme court review, and a very caustic remark: “Some 20 years after killing three Indian soldiers, Mohammad Arif is still alive thanks to Indian judiciary.” That is the message. Somebody forwarded it to me, somebody who was known to me sent it to me. I said, “Wrong address. I wrote the dissenting judgement in Arif’s case.” Not that I took any great pleasure or pain in writing it. I have nothing to do with Arif. You can’t blame me for this. 

This is widely circulated. Even on YouTube, somebody was speaking about it. Nowadays, you have a mobile phone—of course, there also people blame me, “Because you struck down 66A, all these things are happening.” I say, “That’s the price which I pay for my liberty, normal price.” Nowadays, with a mobile phone in your hand, you can post anything on YouTube.

RAJAGOPALAN: When it comes to cases like Mohammad Arif, I don’t think the opinion that Justice Nariman wrote is incomprehensible or something like that. That’s not what I’m alluding to. What I couldn’t parse out was, what was the source of systemic bias or distress that they were trying to correct?

One possibility could be these are extreme circumstances, the very political situation of this particular matter. This is not just a standard death row case. This is very specific, there are soldiers involved, there are people from minority community involved, and we need to be a little bit extra careful and extra sensitive because we are not sure if the—

CHELAMESWAR: But if that is the case, the logic should be a more closely tailored logic. Now the judgement applies to every—

RAJAGOPALAN: Everything.

CHELAMESWAR: Majority, minority man, woman, anybody. If that is the basis on which that judgment proceeded, with that idea behind it, then it should have been a more closely tailored judgment. I’m not commenting on my colleagues’ opinion.

RAJAGOPALAN: No, no, I totally understand.

CHELAMESWAR: I’m only entering a discussion with you on what you said.

RAJAGOPALAN: I’m also not able to entirely understand what is the bigger problem that they were solving for. I understand that the core level problem they’re solving for is error and we really don’t want error when it comes to a death row case, right? That’s a pretty straightforward thing, but there’s a broader concern, there’s a systemic concern about the judiciary.

CHELAMESWAR: I understand. Everybody becomes a little—it’s life which is being extinguished. Let’s be more cautious about it, it’s irreversible, irreversible. I understand. Fine, maybe people may think that I’m insensitive to this kind of thing, well it’s open for people to go with. The point is you have to trust. 

You remember I quoted it in one of my lectures, from Lawrence Tribe, he said, remember that quote, “I do not consider the judgments of the supreme court to be synonymous with constitutional truth. A court which held slaves to be nonpersons, separate is equal, so on and so forth can hardly be final or infallible,” but the profundity of the balance of scholarship comes in the next sentence. “Such passing finality as the judgments of the supreme court have is essentially a compromise between order and chaos,” he says. You have to trust somewhere. If you think the wisdom of two colleagues is not good enough, amend the rule, make it five judges in every case. This ad-hoc decision-making—

RAJAGOPALAN: On this, we are on the same page, which is too many things in the court happen on an ad-hoc basis. We’re making it up as we go along based on the particulars of a case as opposed to a broader rule.

CHELAMESWAR: Maybe tomorrow another set of five judges may think maybe three judges are not good, five judges are required. Do we go on like this? When we’re talking about jurisprudence, these are my problems.

RAJAGOPALAN: What is your view of how you think more broadly about dissents because you have been called the famous chief dissenter of the court, and you have some interesting monikers attached to you. Do you see them playing an important role in the way the jurisprudence evolves? Do you see these just as we need to put forth our arguments at that point and see who runs with it in the future?

CHELAMESWAR: If I have taken a role and for that matter any judge who decides he will dissent, [will do it] with the best of his ability to uphold the law and constitution, the law and constitution as you understand it. My understanding need not be perfect or it is right and is perfect, I don’t know. It is all a matter of opinion once again. And when it is found to be a minority opinion today, tomorrow it may become a majority opinion at a future date. A view which was held for 50 years that all rights of election are creatures of statute, that has now changed. It is my obligation to decide in accordance with the Constitution, as I understand it. I was not asking for attention when I wrote a dissenting judgment, certainly not. I was not looking for the headlines the next morning. That’s how I understood the constitution and I thought I owed a duty, so I wrote.

RAJAGOPALAN: It was a pleasure to read some of them. Thank you so much for doing this. This was such a pleasure. Thank you for speaking with me.

CHELAMESWAR: Thank you.