Justice Chelameswar has hinted that high-priced lawyers may be part of the problem when it comes to dealing with judicial corruption.
But who will bell the cat if judges themselves are not willing to do this?
Justice Jasti Chelameswar, who created waves this January when he and three other collegium judges addressed the media claiming all was not well with the judiciary, has made some interesting points in a recent interview that are sure to be missed.
In his post-retirement interview, he has stood by all his previous statements on making the process of allotting cases more transparent, and reiterated his support for the elevation of Uttarakhand Chief Justice K M Joseph to the Supreme Court and Justice Krishna Bhat to the Karnataka High Court. Both elevations have been stalled by the government.
But two other points he made indirectly carry much import, but they have been ignored by the media since they do not support the dominant Lutyens narrative that the Narendra Modi government is a threat (probably the only threat) to judicial independence.
One point relates to his view that the National Judicial Appointments Commission (NJAC), where he was the sole judge on a five-judge constitution bench to support the law in 2015, was a valid way to address the issue of senior judicial appointments. The bench by a 4-1 majority had declared the law to be unconstitutional.
Justice Chelameswar also hints that high-priced lawyers may be part of the problem when it comes to dealing with judicial corruption. This is something this writer agrees with.
In an interview to The Economic Times, Justice Chelameswar says clearly that the NJAC was “constitutionally permissible” and that he stood by his dissenting judgement. He said: “I still don't find anything wrong with the NJAC experiment. I still stand by my judgment, ever word I wrote. The question is how this system is operated.”
Justice Chelameswar also made it clear that judicial independence did not mean the government should have no say in judicial appointments. The question was only about whether it should have a decisive say. To quote him: “How can you keep the elected government totally away? Now, whether they should have absolute say or not is the question. The constitution says they should not have that say. It says consult the Chief Justice. Now, consultation means what? The colour of this thing is black, you say it’s white. We are not agreeing but then due weight should be given to me. So, first of all, is my statement verifiable independently? Similarly, when the CJI and SC Collegium say a man is good and the government has a different opinion, then there must be some objective consideration on the basis of which that is to be determined.”
This is a refreshing change from the earlier insistence of the top judiciary that the collegium must have full authority to select judges, with government having practically no say at all.
Another point that came across indirectly was his disdain for high-priced lawyers.
Justice Chelameswar was asked about the state of judicial corruption. His reply: “Justice (JS) Verma made a statement, Justice (PS) Bharucha (both former CJIs) made a statement, but did anything happen in this country? None of these ‘Rs 1 crore per day lawyers’ spoke up. They have appeared before all the judges whom they condemned subsequently. So, what's the point talking about it.”
Was Justice Chelameswar hinting that corruption suits these Rs 1 crore lawyers? Among the lawyers who have spoken repeatedly about judicial corruption are Shanti Bhushan and Prashant Bhushan, with the former saying in open court in 2010 that eight of the former 16 CJIs were corrupt.
In reply to another question, on whether the judiciary should have a selection-cum-interview process for appointing judges, he said: “I am all for a system where judges to constitutional courts are subjected to scrutiny by a public body. But how many people will agree for this? You ask these Rs 1 crore lawyers, whether they will agree for that.”
This second reference to Rs 1 crore lawyers tells us that the judge does not think highly of high-cost senior counsel, who wield so much power in the corridors of the Supreme Court.
The question to ask is whether the high fees they charge is in any way related to their equations with the senior judiciary, and their power to influence judgements.
Legally India, a law website, gave details on how much senior lawyers may be charging for a single court appearance, and these sums run into lakhs, with some lawyers charging huge retainer fees as well.
The website discovered that Ram Jethmalani was at the very top, charging upto Rs 25 lakh for an appearance, apart from a retainer that may run to Rs 1 crore, not to speak of conferencing fees that will be similar to the hearing fees. As we wrote earlier in Swarajya, “the data collected by Legally India suggests that Fali Nariman charges Rs 11-15 lakh per hearing, P Chidambaram Rs 6-7 lakh, Kapil Sibal Rs 8-15 lakh, Gopal Subramanium Rs 5.5-15 lakh, Harish Salve Rs 6-15 lakh, A M Singhvi Rs 6-11 lakh, C A Sundaram Rs 5.5-16.5 lakh, and so on.
“To repeat, these are the fees for turning up just once in the Supreme Court. Interestingly, the rates for appearing in the Delhi High Court are sometimes even higher. For example, K K Venugopal, who charges Rs 5-7.5 lakh for turning up in the Supreme Court, charges in the range of Rs 7-15 lakh for appearing in the Delhi High Court.”
Justice Chelameswar has hinted that there may be a problem with high-cost lawyers. Time to investigate this nexus. But who will bell the cat if judges themselves are not willing to do this?