Electoral victory cannot legitimise everything that the government does, says former SC judge Chelameswar

Constitution and democracy are not synonymous. If democracy is just about conducting elections once in five years, then we do not require a Constitution at all. Unfortunately, elected people all over the world, not just in India, believe that electoral victory confers legitimacy for everything that the elected government does, Jasti Chelameswar, a retired judge of the Supreme Court, said on Saturday.

He was addressing a gathering at the Asian College of Journalism (ACJ) here after releasing a book, Constitutional Concerns: Writings on Law and Life, authored by Supreme Court lawyer Kaleeswaram Raj. N. Ram, Director, The Hindu Publishing Group, received the first copy and subsequently chaired the first session of a colloquium addressed by former High Court judges K. Chandru and K. Kannan.

In his keynote address on ‘The Constitution and Democracy’, Justice Chelameswar cited the capital punishment imposed on Greek philosopher Socrates on the charge of spreading wrong ideas and said the punishment was not imposed by one or two judges but by the entire citizenry of Athens. “If democracy means only numbers and participation of people, the trial and punishment of Socrates must be the most democratic act,” he said. Stating that mere numbers were not sufficient and those numbers should be necessarily guided by some better standards of ethical or rational principles through which people could govern themselves, he said, “It is this requirement which necessitates the existence of the Constitution.” It was to check the tendency of misusing electoral majority that the system of constitutional governance was invented by the genius of mankind, he added.

When the American Constitution was drafted, three prominent public men published a series of articles on the future of the American State. Those papers were published later collectively. “In one of those papers, the author says, if men were to be angels, no government is required to govern them and if angels were to rule them, no law would be required to guide them. It is this factor which impels the existence of the Constitution,” Mr. Chelameswar stressed.

In the same breath, he went on to state that if the people believe that the Constitution would on its own safeguard them and their rights, then it would be a sad mistake. “If people are not vigilant, if people do not take care of their rights, people do not bother about their liberties, people do not stand up and fight for their lives and liberties, no document, no Constitution can save their lives and liberties,” he cautioned. Recalling an interview given by Kanchi Paramacharya Sri Chandrashekharendra Saraswati in 1977, the retired judge said, “When asked about the dark days of Emergency, the great soul, in a very profound way, said, ‘What else can happen in a country which loses respect for truth.’ That is the whole problem. Most people in this country are afraid of speaking truth. Even if they speak truth, they do it only in their drawing rooms. In the public sphere, they do not speak truth.”

He lamented how the Supreme Court, during the proclamation of Emergency between 1975 and 1977, accepted the state’s argument that no citizen could approach courts of law when their fundamental rights get suspended. The state’s contention was that the Constitution itself provides for suspension of fundamental rights. Unfortunately, it took over 40 years for the Supreme Court to declare its earlier decision to be a bad law, he said.

Further, referring to serious corruption charges levelled against Allahabad High Court judge V.N. Shukla in 2018, Justice Chelameswar said the then Chief Justice of India constituted a committee to probe those charges but none of the senior judges in the Supreme Court were aware of the constitution of such a committee. The committee, too, submitted a report finding him guilty and even that report was not shared with the collegium.

“This is the constitutional culture we have in this country. More important point is that this judge went on leave for more than a year and His Excellency the President of India was pleased to grant that leave. Ultimately, no action was initiated as that gentleman continued in office happily and retired from service. Why did this man go on leave or why did the President of India sanction that leave, God only knows,” the retired judge rued.

Further, referring to a debate on appointment of judges to the higher judiciary having taken place in the Rajya Sabha this week, Justice Chelameswar said the issue of Justice Shukla was not debated anywhere. ACJ chairman Sashi Kumar; publisher of the book Indira Chandrasekhar; and the author also spoke. Anushka Singh, Assistant Professor, Dr. B.R. Ambedkar University, Delhi; Senior Counsel R. Vaigai; and advocate Geetha Ramaseshan spoke at other sessions of the colloquium.