In the constitutional scheme of things, the SC is the last word on interpretation of the Constitution. The argument that the NJAC is repugnant to the essence and spirit of the Constitution will be held valid till the apex court reviews its own decision by a larger bench.

“Reform that you may preserve” was the parting remark of Justice J Chelameshwar the only dissenting judge in the five-member constitutional bench which struck down the setting up of the National Judicial Appointments Commission (NJAC) for appointing judges in the higher courts.

The bench, in a majority decision (4-1) held the constitutional amendment, passed with 100 percent political unanimity in Parliament, as subversive to basic features of the constitution.

In the constitutional scheme of things, the SC is the last word on interpretation of the Constitution. The argument that the NJAC is repugnant to the essence and spirit of the Constitution will be held valid till the apex court reviews its own decision by a larger bench.

Chelameshwar’s dissenting voice is quite critical of the tendency of the judiciary to arrogate absolute power to itself in the matter of appointing judges. In his judgment, he quoted legal luminaries to highlight the hollowness of this argument. "The basic feature of the constitution is not the primacy of the opinion of the CJI but lies in non-investiture of absolute power in the President (executive),” he said quoting attorney general Mukul Rohatagi to buttress his point.

With the SC’s decision to scrap the NJAC, the collegium system which is considered in the legal fraternity as most opaque and clannish would be revived. Justice Chelameshwar also is concerned at the lack of transparency: "Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Ruma Pal, J. is on record (for having said that) 'Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system'.”

While his brother judges trashed the inclusion of ‘two eminent persons’ (Read more here) in the NJAC, Justice Chelameshwar welcomed it on grounds of transparency and loosening of judicial clasp on appointments. "One beneficial purpose the induction of representatives of civil society would hopefully serve is that it acts as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches. To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society.”

As for the possibility of the two eminent persons from civil society misusing their authority (or doing so in tandem with the executive), Justice Chelameshwar said: "The possibility of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power."

There are over 380-odd vacancies lying higher courts that need to be filled up to expedite the process of adjudication. That the collegium system in which CJI is vested with all authority is disapproved by even those opposed to the NJAC. Fali S Nariman , an ardent opponent of the NJAC, was equally critical of the collegium system that came into force in 1993 (second judges case) in which he was the petitioner.

Chelameshwar’s judgment reads like a critique of the higher judiciary and repudiates the notion that the judiciary is vested with all the wisdom and insulated from the two important organs of the state- executive and legislature. He refers to international practices and quotes from the history to buttress his argument that the healthy balance among various organs is the prerequisite of the a healthy and thriving democracy. Quoting famed Justice Krishna Iyer, he highlights human frailty and almost pleads for judicial humility: “Iyer, J. cautioned - And when criteria for transfers of Judges are put forward by the President which may upset past practices we must, as democrats, remember Learned Hand who once said that the spirit of liberty is 'the spirit which is not too sure that it is right'. That great Judge was fond of recalling Cromwell’s statement : 'I beseech ye in the bowels of Christ, think that ye may be mistaken'. He told a Senate Committee 'I should like to have that written over the portals of every church, every school and every court-house, any may I say, of every legislative body in the United States. I should like to have every court begin 'I beseech ye in the bowels of Christ, think that we may be mistaken'.”

"Replace “transfers” and “President” with “appointments” and “Parliament” and Iyer, J’s admonition is custom made to answer the objections (ii) and (iii) of the petitioners. There is a possibility that the apprehension expressed by the petitioners might come true. The possibility of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power. Bachawat, J. in I.C. Golak Nath (supra) opined as follows:

What is particularly significant is the fact that the dissenting judgment takes exception to the SC’s tendency to negate the laws passed by Parliament. In his views, the apex court should not be seen encroaching upon the domains of the legislature and executive. He found it totally untenable to nullify the constitutional amendments that reflect the overwhelming will of the people. "Under any constitutional model, primary responsibility to preserve liberties of the people is entrusted to the legislative and executive branches. Such entrustment is predicated on the structural and empirical assumption that legislators chosen periodically would strive to protect the liberties of their “only masters – the people”. This is for two reasons operating in tandem. They are the obligation to discharge the trust reposed and the fear of losing the glory of being the chosen representative. An in built possibility in the system of periodic elections.” In a sense, while saying this, he argues against the grain of the collective wisdom that the Supreme Court is the ultimate protector of civil liberties.

Justice Chelameshwar’s parting shot for his brethren quoting the famous speech of Lord Macaulay in House of Commons on March 1831, is poignant. Macaulay who pressed for political reforms and voting rights for less privileged found a majority of members of the House opposing the reform. He reminded the House of the people’s will and political mood and urged members that the reforms are essential for their own preservation. “Reform that you may preserve."

In his dissent, Like Macaulay, Justice Chelameshwar has sounded a grim warning to the higher judiciary of its declining credibility among people and the urgency of the institution to subject itself to imminent reform. Though the majority has overruled him, it would be difficult for the apex court to avert the inevitable. Later, if not sooner.

Read Justice Chelameshwar’s dissenting judgement in full here:

Judgement 1